HEAD, J.
This court ruled in Jenkins v. State, 82 Ala., 25, that it was competent for a witness to testify that the defendant appeared to be mad. This ruling justified the admission of like evidence in the present case.
The witness, May, was permitted to testify for the State, that the muzzle of a pistol would have to be very close to clothing to scorch it. My brothers are of opinion that it is of common knowledge that the muzzle of a pistol must be very close to clothing, when fired, to scorch it; and while not necessary to be proven, there can be no possible injury to the defendant in permitting a fact to be proven which is already known to the jury, exactly as testified to. I dissent from that conclusion for two reasons : In the first place, I think it is a matter for expert testimony, and the witness was not shown to be expert in such matters. His testimony was that he had not had a great deal of experience with pistol shooting, but that since the killing, he had made some experiments to ascertain at what distance the powder from a pistol would scorch clothing ; that it would depend somewhat on the character of the powder; that some powder was soft, and would be consumed very quickly, while other was in hard grains, and was much slower in being consumed ; that it would depend very greatly upon the kind and character of the powder in a pistol as to the distance it would take to scorch clothing. Thus it appears, that there is a total want of evidence to show that the witness had any experience or observation whatever, in respect of the matter of inquiry, except several experiments, possibly not more than two, made after the killing. There is no attempt even to prove that those experiments had any similarity, in any particular, to the characteristics of the actual fatal assault for which the defendant was being tried ; hence if the witness had given a practical, tangible, opinion as to the distance inquired about, it would have been an opinion based upon a species of knowledge utterly variant from [57] that knowledge which the law says qualifies one to give his opinion as an expert. — Tesney v. State, 77 Ala., 33. But, again, it was, I think, improper to submit to the jury, to speculate upon, an opinion so vague and indefinite as that which the witness was permitted to give in this instance. It is not impossible that there were in the minds of the jurors, produced by this evidence, twelve different conceptions or conclusions as to the distance necessary for the powder from defendant’s pistol to scorch the clothing of the deceased. How far these conceptions varied would be matter of mere conjecture. The jurors could not know what was meant by “very close” in the connection used. But in the view taken by my brothers, there was no error in admitting the testimony. It was, they hold, Yvithin the power of defendant, by cross-examination, to elicit all the facts in detail, within the witness’s knowledge, and he cannot complain of the generality of the statement of the witness which, by such cross-examination, could have been obviated.
In our more recent rulings upon the subject, we departed from the definition of the term “formed design,” as it was given in the case of Mitchell v. State, 60 Ala., 26. It is now held, in effect, that the intentional taking of life with a deadly weapon, implies a formed design to take the life, whether it be a willful, malicious, deliberate and premeditated killing, constituting murder in the first degree; or malicious, merely, constituting murder in the second degree ; or without malice, constituting manslaughter ; or whether the homicide was excusable or justifiable. The instruction, therefore, that when one intentionally kills another with a deadly weapon, the law presumes that it was maliciously done, and Avas done with formed design to take life, unless the evidence which proves the killing shows the excuse or extenuation, Avas free from error. — Hornsby’s Case, 94 Ala., 55; Barton’s Case, post herein.
The court also said to the jury in an instruction touching the same subject, that the killing of the, deceased by the defendant intentionally with a deadly weapon, was not denied. This was a mere statement of a fact, by the court, Avhich was clearly and fully shown by the evi-. dence, Avitliout dispute, and which the court Avas, consequently, authorized to make.
[58] The jury was correctly instructed that the burden was upon the defendant to prove self-defense.
Charges 1, 2,3, 5, 6,7,8 and 9, given on request of the State, are substantial copies of instructions held by this court to be good, in Wilkins v. State, 98 Ala., 1. We adhere to those rulings.
Charge No. 1, requested by defendant, was ruled bad in Smith v. State, 88 Ala., 23; Fonville v. State, 91 Ala., 39.
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HEAD, J.
This court ruled in Jenkins v. State, 82 Ala., 25, that it was competent for a witness to testify that the defendant appeared to be mad. This ruling justified the admission of like evidence in the present case.
The witness, May, was permitted to testify for the State, that the muzzle of a pistol would have to be very close to clothing to scorch it. My brothers are of opinion that it is of common knowledge that the muzzle of a pistol must be very close to clothing, when fired, to scorch it; and while not necessary to be proven, there can be no possible injury to the defendant in permitting a fact to be proven which is already known to the jury, exactly as testified to. I dissent from that conclusion for two reasons : In the first place, I think it is a matter for expert testimony, and the witness was not shown to be expert in such matters. His testimony was that he had not had a great deal of experience with pistol shooting, but that since the killing, he had made some experiments to ascertain at what distance the powder from a pistol would scorch clothing ; that it would depend somewhat on the character of the powder; that some powder was soft, and would be consumed very quickly, while other was in hard grains, and was much slower in being consumed ; that it would depend very greatly upon the kind and character of the powder in a pistol as to the distance it would take to scorch clothing. Thus it appears, that there is a total want of evidence to show that the witness had any experience or observation whatever, in respect of the matter of inquiry, except several experiments, possibly not more than two, made after the killing. There is no attempt even to prove that those experiments had any similarity, in any particular, to the characteristics of the actual fatal assault for which the defendant was being tried ; hence if the witness had given a practical, tangible, opinion as to the distance inquired about, it would have been an opinion based upon a species of knowledge utterly variant from [57] that knowledge which the law says qualifies one to give his opinion as an expert. — Tesney v. State, 77 Ala., 33. But, again, it was, I think, improper to submit to the jury, to speculate upon, an opinion so vague and indefinite as that which the witness was permitted to give in this instance. It is not impossible that there were in the minds of the jurors, produced by this evidence, twelve different conceptions or conclusions as to the distance necessary for the powder from defendant’s pistol to scorch the clothing of the deceased. How far these conceptions varied would be matter of mere conjecture. The jurors could not know what was meant by “very close” in the connection used. But in the view taken by my brothers, there was no error in admitting the testimony. It was, they hold, Yvithin the power of defendant, by cross-examination, to elicit all the facts in detail, within the witness’s knowledge, and he cannot complain of the generality of the statement of the witness which, by such cross-examination, could have been obviated.
In our more recent rulings upon the subject, we departed from the definition of the term “formed design,” as it was given in the case of Mitchell v. State, 60 Ala., 26. It is now held, in effect, that the intentional taking of life with a deadly weapon, implies a formed design to take the life, whether it be a willful, malicious, deliberate and premeditated killing, constituting murder in the first degree; or malicious, merely, constituting murder in the second degree ; or without malice, constituting manslaughter ; or whether the homicide was excusable or justifiable. The instruction, therefore, that when one intentionally kills another with a deadly weapon, the law presumes that it was maliciously done, and Avas done with formed design to take life, unless the evidence which proves the killing shows the excuse or extenuation, Avas free from error. — Hornsby’s Case, 94 Ala., 55; Barton’s Case, post herein.
The court also said to the jury in an instruction touching the same subject, that the killing of the, deceased by the defendant intentionally with a deadly weapon, was not denied. This was a mere statement of a fact, by the court, Avhich was clearly and fully shown by the evi-. dence, Avitliout dispute, and which the court Avas, consequently, authorized to make.
[58] The jury was correctly instructed that the burden was upon the defendant to prove self-defense.
Charges 1, 2,3, 5, 6,7,8 and 9, given on request of the State, are substantial copies of instructions held by this court to be good, in Wilkins v. State, 98 Ala., 1. We adhere to those rulings.
Charge No. 1, requested by defendant, was ruled bad in Smith v. State, 88 Ala., 23; Fonville v. State, 91 Ala., 39.
. Whilst the burden of proof is upon defendant to show self-defense, yet, if upon all the evidence, the jury have a reasonable doubt whether he acted in self-defense or not, he is entitled to the benefit of the doubt and to an acquittal. — Prince v. State, 100 Ala., 144; Hurd v. State, 94 Ala., 100; 9 Am. & Eng. Ency. of Law, 731. Charge No. 2, requested by defendant, which was intended to state this principle, was, in the opinion of my brothers, faulty as an instruction, by reason of the fact that it failed to set forth the constituents of self-defense ; for which vine charge No. 5, requested by the defendant, in Roden, v. State, 97 Ala., 54, was held bad by this court. 1 feel constrained to dissent from this conclusion. The bill of exceptions shows that the court had before, in its oral charge and in special written instructions, fully explained to the j ury the law of self-defense. Charge No. 2 was intended merely as an instruction upon the law of reasonable doubt, in connection with the plea of self-defense, and the guilt of the defendant generally, and I am unable to see the necessity, in such an instruction, when it is affirmatively shown that the j ury was already fully informed by the court, what the legal constituents were, to set out those constituents. Suppose the court was requested to charge the jury that if they have a reasonable doubt of the defendant’s guilt, arising from the evidence, they must acquit him, would it be contended that the charge should be refused because it failed to set forth all the legal elements of the crime, and the defenses relied upon as the bases of a claim to an acquittal? Self-defense being one of the defenses relied upon, its consideration by the jury, upon the question of guilt or innocence, was necessarily involved. Would the instruction, above supposed, be held vicious because it failed to set forth the constituents of that defense? I think such a ruling would be opposed to the [59] universal and never questioned practice of the courts everywhere; and in my judgment there can be no conceivable distinction, in principle, between the charge supposed, and that now under consideration; for the (dements which enter into and constitute the crime, and the defenses to the charge thereof, involve legal principles which the jury must learn from the court, and which it is the duty of the court to give — a duty which it will be supposed the court performed. If the constituents of self-defense, upon a charge as to the law of reasonable doubt of guilt, in that connection, must be set forth in the- charge, it seems to me the conclusion is irresistible that all the legal principles-which enter into and characterize the crime and its defenses, would have to be set forth in such a charge as that I have above supposed ; for the jury have no more information as to what those principles are, than they have of the legal constituents of self-defense. I think there is a difference in the offices of the charge in question, and that in Roden v. State, supra. There the court was invoked to define, first, tin elements which constituted the crime charged, and, secondly, the principles of the defense invoked. it was a charge designed to inform the jury of the elements of the crime and its defense, and not to inform them upon another proposition, viz: that the defendant was entitled to the benefit of any reasonable doubt of his guilt. My brothers,however, argue and so hold, that each charge requested must be complete and perfect in itself, without reference to any other charge, genera] or special, given, or supposed to have been given, by The court: that there is no distinction in principle, between the charge under consideration, and that in Roden’x case, and adhering to the ruling in that case, the charge in question was faulty for the reason mentioned, and properly refused.
Good character of the accused is a fact to be considered in connection with all the other evidence, and when so considered may sometimes properly generate a doubt of guilt when the other evidence without it would leave no doubt. The jury should not be instructed to single out the evidence of good character, and from it alone, without considering its connection with the other evidence, reach the conclusion that a reasonable doubt of guilt exists. Charge 3 requested by defendant, was [60] properly refused.—Goldsmith v. State, 105 Ala. 8; Springfield v. State, 96 Ala,, 81; Grant v. State, 97 Ala., 35.
Charge No. 4, requested by defendant, was abstract and invaded the province of the jury, and was properly refused.
Charge No. 5, requested by defendant, seems to be a correct exposition of the law, but we think it is couched in language which seeks to put the court in the attitude of casting some distrust, doubt or suspicion upon the truth of the State’s evidence of threats. Why insert the word “even'” in the expression, “even if it be a fact?” We think it justified the court in refusing the instruction.
The judgment of the Circuit Court must be affirmed.