BRICKEN, P. J.
The defendant admittedly killed Daniel Webster, the person named in the indictment, by shooting him with a pistol. Foi’ this act he was indicted by the grand jury and charged with the offense of m’urder in the first degree. Issue was joined upon his plea of not guilty, the trial resulting in a verdict by the jury as follows:
“We the jury find the defendant guilty of murder in the second degree and fix bis punishment at imprisonment in the penitentiary for fifteen years.”
Judgment and sentence based upon this verdict followed, from which defendant appeals.
The defendant relied upon self-defense as a justification of his act in killing Webster.
A large number of witnesses were examined upon the trial of this case, but the trial throughout -proceeded with but few objections and exceptions. We will discuss these questions in the order in which they appear in the record.^
Tlie testimony in the record tends to show that the defendant had a brother-in-law by the name of Walker; and that Walker had committed an assault and battery against Mrs. Walker; that the defendant as stated by him had been assisting in a prosecution of Walker for the mistreatment of his wife; and that the deceased, Daniel Webster, and Boy Copeland, one of the principal witnesses for the state, together with other parties, had signed a petition to relieve Walker from complying with the terms of the judgment in the criminal case against him, and for this reason ill feeling had arisen between the defendant and Webster, the deceased. It is evident that this matter was the real cause of the trouble leading up to the killing of Webster by defendant.
On reeross-examination of defendant, and over his; objection and exception, he was required to answer that he knew a man by the name of Bernard Fowler. The Solicitor then asked him:
“Now. didn’t you tell Mm in a conversation at his mail box this side of Adamsburg about a week or ten days before the killing, when you were talking to him about the people who signed that petition for your brother-in-law, that if they didnit mind you would get some of the damn fellows yet?” To which he answered: “No, sir; I did not tell him that.”
The Solicitor then asked him:
“Now, didn’t you tell him just a few days before this happened — talking about those who signed that petition — that you would get some of the damn folks yet?” The defendant answered: “I never had any conversation with Fowler at his mail box. I did not say anything like that.”
The witness Bernard Fowler was then introduced, and over the objection of the defendant testified:
“I know Gus King (the defendant). I had a conversation with him about a week or ten days before the killing of Daniel Webster, at my mail box this side of Adamsburg.”
The Solicitor then asked this question:
“I will ask you if you had a conversation with him concerning the people who signed a petition for his brother-in-law, and if in that conversation he said ‘If those folks didn’t mind their own business he would get some of the God damn folks yet.’ ” The witness answered, “Yes, sir.”
And over the objection of defendant this witness further testified that the defendant also said, “If they don’t mind what they were doing, he would get some of the sons of bitches yet.”
The exceptions reserved to the court’s rulings in this connection are without merit. The testimony was material as tending to show the animus of the defendant to the deceased for having signed the petition in question, and it also tended to show the motive which actuated the defendant in taking the life of deceased.
The motive of accused is always a legitimate subject of inquiry on the trial of one charged with crime, and while evidence showing motive is not indispensable, and is not an element of the 'burden of proof resting upon the prosecution, yet it is always permissible to adduce testimony which tends to show the motive of the accused.
Moreover, the testimony above referred to was admissible as tending to show threats by defendant against deceased. The trouble resulting in the killing of Webster arose about the signing of a petition by him and other parties; and this testimony related to threats by defendant as against all the persons who had signed the petition, and under the rule laid down in the following cases the court properly allowed the jury to pass upon these threats:
In Harrison v. State, 79 Ala. 29, the court said:
“Threats made by the defendant against the deceased, or against a class to which the deceased- belonged, ’and prima facie referable to him, though his name was not mentioned, are competent and admissible as evidence against him. and it is ior the jury to determine whether they, in fact, had reference to the deceased.”
See, also, Anderson v. State, 79 Ala. 5; Jordan v. State, 79 Ala. 13; Sharp v. State, 193 Ala. 22, 69 South. 122; Patterson v. State, 202 Ala. 65, 79 South. 459.
The next question presented relates to objections and exceptions to a portion of the argument made to the jury by associate counsel for the state. It has well been said that a presiding judge is called on to perform a most delicate and responsible duty, when required to interfere with the freedom of argument, which is the privilege of counsel. Much must be committed to his sound discretion, as to the course and character of the debate which should- be allowed on the trial of a case. The general rule established in this respect is, in order that a statement may come within the rule , which prescribes the limits of fair discussion, “the statement must be made
as of fact;
,the fact stated must be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury.” Gross v. State, 68 Ala. 476. An examination of the argument here complained of convinces us that it does not fall within the above rule, and that the court did not err in overruling the objections made in tbi§ connection.
Charges 1, 2, and 3 were bad. The immunity from retreat, which under the law is applicable to a man’s home, does not apply to a public road. These charges assert this erroneous proposition and were therefore properly
refused. Pillar v. State, 15 Ala. App. 576,
74 South.
398. The fact that -the defendant had his mules and wagon on the public road at the time of the difficulty did not relieve him of the duty to retreat if he could have done so without thereby, increasing his peril; it is no excuse for failure to retreat that defendant would have been compelled to turn loose his team. Finch v. State, 81 Ala. 41, 1 South. 565.
Charge 4 refused to defendant does not state the law, relative to the character of defendant; for in the absence of proof there is no presumption as to character being- good or bad. In other words, the law raises no presumption as to whether character is good or bad. There was no error in the refusal of this charge. Griffin v. State, 165 Ala. 29, 50 South. 962.
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BRICKEN, P. J.
The defendant admittedly killed Daniel Webster, the person named in the indictment, by shooting him with a pistol. Foi’ this act he was indicted by the grand jury and charged with the offense of m’urder in the first degree. Issue was joined upon his plea of not guilty, the trial resulting in a verdict by the jury as follows:
“We the jury find the defendant guilty of murder in the second degree and fix bis punishment at imprisonment in the penitentiary for fifteen years.”
Judgment and sentence based upon this verdict followed, from which defendant appeals.
The defendant relied upon self-defense as a justification of his act in killing Webster.
A large number of witnesses were examined upon the trial of this case, but the trial throughout -proceeded with but few objections and exceptions. We will discuss these questions in the order in which they appear in the record.^
Tlie testimony in the record tends to show that the defendant had a brother-in-law by the name of Walker; and that Walker had committed an assault and battery against Mrs. Walker; that the defendant as stated by him had been assisting in a prosecution of Walker for the mistreatment of his wife; and that the deceased, Daniel Webster, and Boy Copeland, one of the principal witnesses for the state, together with other parties, had signed a petition to relieve Walker from complying with the terms of the judgment in the criminal case against him, and for this reason ill feeling had arisen between the defendant and Webster, the deceased. It is evident that this matter was the real cause of the trouble leading up to the killing of Webster by defendant.
On reeross-examination of defendant, and over his; objection and exception, he was required to answer that he knew a man by the name of Bernard Fowler. The Solicitor then asked him:
“Now. didn’t you tell Mm in a conversation at his mail box this side of Adamsburg about a week or ten days before the killing, when you were talking to him about the people who signed that petition for your brother-in-law, that if they didnit mind you would get some of the damn fellows yet?” To which he answered: “No, sir; I did not tell him that.”
The Solicitor then asked him:
“Now, didn’t you tell him just a few days before this happened — talking about those who signed that petition — that you would get some of the damn folks yet?” The defendant answered: “I never had any conversation with Fowler at his mail box. I did not say anything like that.”
The witness Bernard Fowler was then introduced, and over the objection of the defendant testified:
“I know Gus King (the defendant). I had a conversation with him about a week or ten days before the killing of Daniel Webster, at my mail box this side of Adamsburg.”
The Solicitor then asked this question:
“I will ask you if you had a conversation with him concerning the people who signed a petition for his brother-in-law, and if in that conversation he said ‘If those folks didn’t mind their own business he would get some of the God damn folks yet.’ ” The witness answered, “Yes, sir.”
And over the objection of defendant this witness further testified that the defendant also said, “If they don’t mind what they were doing, he would get some of the sons of bitches yet.”
The exceptions reserved to the court’s rulings in this connection are without merit. The testimony was material as tending to show the animus of the defendant to the deceased for having signed the petition in question, and it also tended to show the motive which actuated the defendant in taking the life of deceased.
The motive of accused is always a legitimate subject of inquiry on the trial of one charged with crime, and while evidence showing motive is not indispensable, and is not an element of the 'burden of proof resting upon the prosecution, yet it is always permissible to adduce testimony which tends to show the motive of the accused.
Moreover, the testimony above referred to was admissible as tending to show threats by defendant against deceased. The trouble resulting in the killing of Webster arose about the signing of a petition by him and other parties; and this testimony related to threats by defendant as against all the persons who had signed the petition, and under the rule laid down in the following cases the court properly allowed the jury to pass upon these threats:
In Harrison v. State, 79 Ala. 29, the court said:
“Threats made by the defendant against the deceased, or against a class to which the deceased- belonged, ’and prima facie referable to him, though his name was not mentioned, are competent and admissible as evidence against him. and it is ior the jury to determine whether they, in fact, had reference to the deceased.”
See, also, Anderson v. State, 79 Ala. 5; Jordan v. State, 79 Ala. 13; Sharp v. State, 193 Ala. 22, 69 South. 122; Patterson v. State, 202 Ala. 65, 79 South. 459.
The next question presented relates to objections and exceptions to a portion of the argument made to the jury by associate counsel for the state. It has well been said that a presiding judge is called on to perform a most delicate and responsible duty, when required to interfere with the freedom of argument, which is the privilege of counsel. Much must be committed to his sound discretion, as to the course and character of the debate which should- be allowed on the trial of a case. The general rule established in this respect is, in order that a statement may come within the rule , which prescribes the limits of fair discussion, “the statement must be made
as of fact;
,the fact stated must be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury.” Gross v. State, 68 Ala. 476. An examination of the argument here complained of convinces us that it does not fall within the above rule, and that the court did not err in overruling the objections made in tbi§ connection.
Charges 1, 2, and 3 were bad. The immunity from retreat, which under the law is applicable to a man’s home, does not apply to a public road. These charges assert this erroneous proposition and were therefore properly
refused. Pillar v. State, 15 Ala. App. 576,
74 South.
398. The fact that -the defendant had his mules and wagon on the public road at the time of the difficulty did not relieve him of the duty to retreat if he could have done so without thereby, increasing his peril; it is no excuse for failure to retreat that defendant would have been compelled to turn loose his team. Finch v. State, 81 Ala. 41, 1 South. 565.
Charge 4 refused to defendant does not state the law, relative to the character of defendant; for in the absence of proof there is no presumption as to character being- good or bad. In other words, the law raises no presumption as to whether character is good or bad. There was no error in the refusal of this charge. Griffin v. State, 165 Ala. 29, 50 South. 962.
Refused charge 5 correctly states the law, but 'its refusal by the court was not error for the reason that this charge was fully covered by charge 3, given at the request of defendant. It is not error to refuse a charge containing a correct proposition of law, if the same principles of law have been fairly and substantially covered by the oral charge of the court, or .by the given charges.
Charge 6 refused to defendant is not predicated upon the evidence in the case, and for this reason was properly refused. This charge also pretermits imminent peril .of suffering grievous bodily harm or death by defendant at the hands of deceased, and is also faulty in this respect.
Refused charge 7, if not otherwise bad. is fairly and substantially covered by given charge 12, and by the oral charge of the court.
Charge 8 is argumentative and was properly refused. Morebver, this charge singles out a part of the evidence and assumes as facts certain things 'which under the testimony were issues for the determination of. the jury.
Charge 9 was bad, and is subject to the same criticism hereinabove indulged as to refused Charge 4; as there stated, no presumption as to character is raised by law in the absence, of proof on this question.
Refused charge 10 is abstract. It is otherwise objectionable. 1 Mayfield, Dig. pp. 194, 195. Its refusal was nqt error.
Charge 11 refused to defendant is misleading. It omits all elements of self-defense and singles out a part of the evidence only. It is the duty of a jury to consider all the evidence in a case and to predicate its findings accordingly.
We find no error in any of the rulings of the court. The record being also free of error, the judgment of conviction pronounced in the lower court is affirmed.
Affirmed.