Prior v. State

77 Ala. 56

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

SOMERYILLE, J.

1. The defendant was indicted for the murder of one Copeland, and was convicted of manslaughter in the first degree.

The Circuit Court, upon the trial, allowed a witness, by way of introduction to the facts attending the killing of deceased, to advert in general terms to a difficulty between the deceased and one "Warren, immediately preceding the one with the defendant, the former of which is shown to have led to the latter. In this we think there was no error, the two affrays being so closely connected as to obviously constitute but one and the same transaction. The interference of the deceased in thefirst seems to have led to the second, and a proper understanding of the one is necessary in order to comprehend the other. The two embrace but one continuing transaction, and, occurring at the same time and place, together constitute but the res gestae of a single principal fact.

2. We discover no error in the refusal of the court to give the various charges requested by the defendant. Many of these charges entirely ignored all inquiry as to who was at fault in bringing on the difficulty — a fact which should have been submitted to the determination of the jury. This objection applies to charges numbered two, three, and nine respectively.

3. Charges numbered five and six are defective, in failing to predicate the defendant’s right to kill in self-defense, among other things, upon the condition of his reasonably apprehending a real or apparent danger of life or limb. The mere fact of his being attacked by deceased, and his being cut with a knife in his hands, obviously would not, without more, make the homicide excusable.

4. The state of facts under which opprobious words, or abusive language, used by a person who is assaulted or beaten, at or near the time of the assault or affray, may be good in extenúation or justification, is a matter left by the statute expressly for the determination of the jury; and the statute, moreover, is confined to trials where the indictment is for assault, assault and battery, or affray. — Taylor v. The State, 48 Ala. 180; Code, 1876, § 4900; Brown v. The State, 74 Ala. 42. The fourteenth charge was, for this reason, properly refused.

5. When the juror, Cotten, was polled, in connection with the other jurors, his reply to the court unquestionably showed his assent to the verdict. If he desired to explain the matter further, he should have made known his wishes to the court before the jury was discharged. We can not assume, for the purpose of putting the court in error, that the counsel for the defendant bad any authority to make a request, in behalf of this juror, to be allowed such opportunity for explanation. 1Von eonstat, but that the juror may have entertained no such desire.

6. To reduce a homicide from murder to manslaughter, the killing must not only have been perpetrated without malice, express or implied, but it must also have been done in a sudden heat of passion, upon reasonable provocation, or 'in mutual combat. There must be a concurrence of adequate provocation, and of ungovernable passion. — Clark’s Man. Or. Law, §§ 419, 421. The fourth charge was not in harmony with this principle, and was properly refused.

We discover no errror in the record, and the judgment is affirmed.