The opinion of the Court was delivered by
Manning, J.
The defendants were indicted for the murder of William E. Eackler. MoClung was acquitted. Riculfi was convicted, the verdict being qualified “ without capital punishment,” and was sentenced to hard labor for life.
The case comes up on a bill of exception, an assignment of errors, and a motion for a new trial.
The errors assigned are alleged misdirections of the court in its charge to the jury, a mode of presenting such matters for review so unusual, and so contrary to established practice, that the prisoners’ counsel have found it necessary to offer an explanation to excuse it, in the circumstance that the charge was delivered late at night. They assert however that their right to submit these matters for review [774]*774under that form “rests upon repeated adjudications of this Court.” Eight cases are cited as sustaining this assertion, one of them being a civil cause and of course wholly out of the domain of the subject, and not one of the others, with a single exception, sustaining or countenancing the practice. That exception is State vs. Ricks, 32 Ann. 1098, which was qualified on the first opportunity the Court.had to intimate its incorrectness, State vs. Beaird, 34 Ann. 104, and which is as there admitted contrary to authority, and again in State vs. Curtis, not yet published, and may now be considered as overruled.
The reason why this practice is not permitted is obvious. By it the Judge has no opportunity to explain his charge—none to state that as given it was pertinent to the facts of the case, and that a fuller charge was not demanded by the circumstances attending the commission of the act for which the defendant is prosecuted. Bills of exception should have been taken to those parts of the Judge’s charge which were deemed to be wrong, which will always bring them up with the Judge’s reasons, and such facts as are necessary to shew how the law was applied. They cannot be examined on an assignment of errors. Even a bill of exception, taken to the charge as a whole, is not allowed. State vs. Chopin, 10 Ann. 458. An assignment of errors in criminal practice is for another purpose than correction of the charge of the court.
- The motion for a new trial is in the main a repetition of what had been already set up in the bill, and both consist of twenty special charges which the court was requested to make, part of which were refused, and a part given with modifications. Almost all of them are taken from works on criminal law of accepted authority, or from decisions of courts where the points were presented and the ruling was therefore apposite. As abstract propositions of law they are correct, but if it were permissible to require a Judge to charge every correct legal proposition because it is correct, although it had no bearing on the case on trial, criminals might postpone their punishment until the contents of every text book on criminal law were exhausted in tendering to the Judge separate and isolated charges, and juries would be so thoroughly mystified, that their modern vocation of “judges of the law” could scarcely be performed to the satisfaction of those who try to invest them with this startling prerogative.
So patent are the objections to this attempt to overload and encumber the law as expounded by the court, that it has been repressed universally, and it is no longer open to controversy that a court not only may, but should refuse to charge an abstract legal proposition which has no bearing upon the case on trial. Long vs. State, 12 Ga. [775]*775293; Daniel vs. State, 8 Smed. & Marsh., 101; Pate vs. People, 3 Gilman, 644.
And this is equally true whether the proposition be correct or in cor 7 rect. The refusal to charge a correct proposition, if it is inapplicable, will be sustained as readily as if it were incorrect. People vs. Cunningham, 1 Denio, 524; Murray vs. State, 18 Ala. 727; Morris vs. State, 25 Ala. 57.
Or if it be correct in part, and wrong in part, the Judge may refuse to charge it. Tomlinson vs. People, 5 Parker, 313. It is not for the Judge to eliminate what is right from what is wrong in the requested charge. The defendant who requests a special charge is supposed to know what principle of law he invokes, and how to state it in proper form.
This matter has been frequently adjudicated, and has been presented in every variety of aspect, so that even if the instruction, in the form in which it is asked, requires limitation, or qualification, or explana7 tion, it may properly be refused. State vs. Rash, 12 Ired. 382; Swallow vs. State, 22 Ala. 20; Preston vs. State, 25 Miss. 383; Baxter vs. People, 3 Gilman, 368.
. And this Court has all along been in accord with those whose decisions we have cited. In Stouderman’s case, 6 Ann. 286, it was said to be the duty of the prisoner’s counsel to have shewn by his bill of exceptions that he asked for instructions to the jury that would have had a material bearing on his case, and that he did not require the court to charge the jury upon abstract principles of law, p.287. And in State vs. Thomas, 34 Ann. 1084, this was affirmed, the court saying, it is not the duty of the Judge, nor is it proper, to announce to the jury abstract principles ,of law, not involved in the pleadings and evidence, however correct those propositions may be.
The refusal to give some of the special charges requested was that given in Roberts’ case 10 Ann. 264, i. e., that they had been substantially given already in the charge and the refusal to give others was for inapplicability. It is not possible for this Court to determine their applicability unless- the bill of exceptions informs us of the circumstances to which the legal principle is sought to be applied. The bill should therefore inform us of the facts to which the charge is claimed to be .pertinent, State vs. Jackson, 12 Ann. 679, State vs. Nelson, 22 Ann. 425, and this does not at all militate against the cardinal rule that this Court does not take cognizance of facts in a criminal trial.
. This requisite was perceived in drawing the bill of exceptions in this .case, which opens with the statement that “ evidence having gone to the jury that threats of the deceased to take the life of the defendant [776]*776had been communicated to the latter prior to the homicide, as well as evidence of an assault upon the person of Eiculfl by deceased some two months before the homicide, and that shortly before the homicide the deceased was searching for Eiculfl, and evidence that Eiculfl apprehended that deceased would carry his threats into execution,” therefore the instructions set forth are .prayed.
Upon this the Judge emphatically declares : “ The court .positively asserts'there was no evidence'introduced in support of the plea of self-defence, and that although it was shewn that threats made by Fackler against Eiculfl had been communicated to the latter on one occasion two months before the killing, and on another occasion one month before, and though it was also established still on another occasion (but before any threats had been communicated to defendant) the deceased had seriously assaulted him at his (deceased’s) own house; not a particle of evidence was given to shew that at the time and place when and where Fackler was killed, he (Fackler) had exhibited the least-intent of carrying his threats into execution. In other words there was utter failure on the part of the defence to. establish any overt act whatever on the part of Fackler when defendant shot him.”
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The opinion of the Court was delivered by
Manning, J.
The defendants were indicted for the murder of William E. Eackler. MoClung was acquitted. Riculfi was convicted, the verdict being qualified “ without capital punishment,” and was sentenced to hard labor for life.
The case comes up on a bill of exception, an assignment of errors, and a motion for a new trial.
The errors assigned are alleged misdirections of the court in its charge to the jury, a mode of presenting such matters for review so unusual, and so contrary to established practice, that the prisoners’ counsel have found it necessary to offer an explanation to excuse it, in the circumstance that the charge was delivered late at night. They assert however that their right to submit these matters for review [774]*774under that form “rests upon repeated adjudications of this Court.” Eight cases are cited as sustaining this assertion, one of them being a civil cause and of course wholly out of the domain of the subject, and not one of the others, with a single exception, sustaining or countenancing the practice. That exception is State vs. Ricks, 32 Ann. 1098, which was qualified on the first opportunity the Court.had to intimate its incorrectness, State vs. Beaird, 34 Ann. 104, and which is as there admitted contrary to authority, and again in State vs. Curtis, not yet published, and may now be considered as overruled.
The reason why this practice is not permitted is obvious. By it the Judge has no opportunity to explain his charge—none to state that as given it was pertinent to the facts of the case, and that a fuller charge was not demanded by the circumstances attending the commission of the act for which the defendant is prosecuted. Bills of exception should have been taken to those parts of the Judge’s charge which were deemed to be wrong, which will always bring them up with the Judge’s reasons, and such facts as are necessary to shew how the law was applied. They cannot be examined on an assignment of errors. Even a bill of exception, taken to the charge as a whole, is not allowed. State vs. Chopin, 10 Ann. 458. An assignment of errors in criminal practice is for another purpose than correction of the charge of the court.
- The motion for a new trial is in the main a repetition of what had been already set up in the bill, and both consist of twenty special charges which the court was requested to make, part of which were refused, and a part given with modifications. Almost all of them are taken from works on criminal law of accepted authority, or from decisions of courts where the points were presented and the ruling was therefore apposite. As abstract propositions of law they are correct, but if it were permissible to require a Judge to charge every correct legal proposition because it is correct, although it had no bearing on the case on trial, criminals might postpone their punishment until the contents of every text book on criminal law were exhausted in tendering to the Judge separate and isolated charges, and juries would be so thoroughly mystified, that their modern vocation of “judges of the law” could scarcely be performed to the satisfaction of those who try to invest them with this startling prerogative.
So patent are the objections to this attempt to overload and encumber the law as expounded by the court, that it has been repressed universally, and it is no longer open to controversy that a court not only may, but should refuse to charge an abstract legal proposition which has no bearing upon the case on trial. Long vs. State, 12 Ga. [775]*775293; Daniel vs. State, 8 Smed. & Marsh., 101; Pate vs. People, 3 Gilman, 644.
And this is equally true whether the proposition be correct or in cor 7 rect. The refusal to charge a correct proposition, if it is inapplicable, will be sustained as readily as if it were incorrect. People vs. Cunningham, 1 Denio, 524; Murray vs. State, 18 Ala. 727; Morris vs. State, 25 Ala. 57.
Or if it be correct in part, and wrong in part, the Judge may refuse to charge it. Tomlinson vs. People, 5 Parker, 313. It is not for the Judge to eliminate what is right from what is wrong in the requested charge. The defendant who requests a special charge is supposed to know what principle of law he invokes, and how to state it in proper form.
This matter has been frequently adjudicated, and has been presented in every variety of aspect, so that even if the instruction, in the form in which it is asked, requires limitation, or qualification, or explana7 tion, it may properly be refused. State vs. Rash, 12 Ired. 382; Swallow vs. State, 22 Ala. 20; Preston vs. State, 25 Miss. 383; Baxter vs. People, 3 Gilman, 368.
. And this Court has all along been in accord with those whose decisions we have cited. In Stouderman’s case, 6 Ann. 286, it was said to be the duty of the prisoner’s counsel to have shewn by his bill of exceptions that he asked for instructions to the jury that would have had a material bearing on his case, and that he did not require the court to charge the jury upon abstract principles of law, p.287. And in State vs. Thomas, 34 Ann. 1084, this was affirmed, the court saying, it is not the duty of the Judge, nor is it proper, to announce to the jury abstract principles ,of law, not involved in the pleadings and evidence, however correct those propositions may be.
The refusal to give some of the special charges requested was that given in Roberts’ case 10 Ann. 264, i. e., that they had been substantially given already in the charge and the refusal to give others was for inapplicability. It is not possible for this Court to determine their applicability unless- the bill of exceptions informs us of the circumstances to which the legal principle is sought to be applied. The bill should therefore inform us of the facts to which the charge is claimed to be .pertinent, State vs. Jackson, 12 Ann. 679, State vs. Nelson, 22 Ann. 425, and this does not at all militate against the cardinal rule that this Court does not take cognizance of facts in a criminal trial.
. This requisite was perceived in drawing the bill of exceptions in this .case, which opens with the statement that “ evidence having gone to the jury that threats of the deceased to take the life of the defendant [776]*776had been communicated to the latter prior to the homicide, as well as evidence of an assault upon the person of Eiculfl by deceased some two months before the homicide, and that shortly before the homicide the deceased was searching for Eiculfl, and evidence that Eiculfl apprehended that deceased would carry his threats into execution,” therefore the instructions set forth are .prayed.
Upon this the Judge emphatically declares : “ The court .positively asserts'there was no evidence'introduced in support of the plea of self-defence, and that although it was shewn that threats made by Fackler against Eiculfl had been communicated to the latter on one occasion two months before the killing, and on another occasion one month before, and though it was also established still on another occasion (but before any threats had been communicated to defendant) the deceased had seriously assaulted him at his (deceased’s) own house; not a particle of evidence was given to shew that at the time and place when and where Fackler was killed, he (Fackler) had exhibited the least-intent of carrying his threats into execution. In other words there was utter failure on the part of the defence to. establish any overt act whatever on the part of Fackler when defendant shot him.”
We are thereupon asked to apply the rule in Tompkins case, 32 Ann. 620, which is to reject both, and that being done, there would be nothing to inform us whether the requested charge is an abstract proposition of law, or one of practical importance and pertinence to the case on trial. The correct rule is that given in State vs. Ladd, 10 Ann. 271, viz., that the Judge should correct erroneous statements of facts in a bill of exceptions. But in truth the two statements do not materially differ about the facts of which both speak, viz., of what happened antecedent to the homicide, but of what the evidence was at the time of the homicide the Judge alone speaks, and where there was no evidence of self-defence then whatever, sufficient or insufficient, it was only needful to expound the general la.w touching it to guide the jury in considering what effect upon the guilt of the prisoner the testimony of antecedent acts and words would have, and this .was done correctly.
Evidence of the character of the prisoner appears to have been offered, since the court charged as follows :
“ Evidence of character is always admissible in behalf of an accused, and on many an occasion may- be of vast advantage to him. The ' accepted doctrine about it is that it tends, under certain phases of a case at bar, to create a doubt which otherwise might not have existed in favor of the accused, or to remove a doubt already existing against him. The jury should look upon it as part of the whole evidence adduced upon the trial; but such evidence, however precise it may be, [777]*777cannot destroy the practical effect of direct and satisfactory statements of uncontradicted witnesses, nor should it be allowed to outweigh, still less destroy, any conclusive evidence of guilt.”
Should the jury regard it in any other way than in connection with the whole evidence? And if conclusive evidence of the commission of the crime is before the jury, must they be told that the proof of good character outweighs it? If so, Dr. Webster could not have been convicted in Massachusetts, nor the Duke of Praslin in Prance, each of a homicide committed with a cool atrocity that puts to shame the bloodthirsty instincts of the ordinary murderer.
The defendant excepted to it, and also to the refusal of the court to charge these two propositions, which we give as illustrations of the numerous special charges requested:
“ 16th. If a good character for peace has been proven, the law says that such good character may be sufficient to create or generate a reasonable doubt of his guilt, although no such doubt would have existed hut for such good character.”
“ 17th. Evidence of good character is not only of value in doubtful cases, but is entitled to be considered when the testimony tends very strongly to establish the guilt of the accused. It will sometimes create a doubt, when without it none would exist.”
That is very true and much more of the same tenor. There may he cases in which the same evidence, if against a person without character, would produce conviction, but if against one with a high character would not, and therefore character is an important element in a case. It would require stronger proof to have convicted Penelon of highway robbery, or the late Sir Robert Peel of malicious mischief, than it would require for others whose characteristics and mental proclivities are not, as were theirs, conspicuously antipodal to these particular offence*. But did not the Judge say all that was needful to be said in the case before him when he told the jury that evidence of character tends under certain circumstances to create a doubt which otherwise might not have existed in favor of the accused, or to remove one already existing against him ? 1 Bishop Crim. Proc. § 1063.
We cannot disturb the verdict in this case. The jury passed upon the question of guilt under instructions upon the law, which so far as we are enabled to review them, are correct.
Judgment affirmed.
Rehearing refused.