Brown v. State, 74 Ala. 478

Brown v. State

74 Ala. 478 | Ala. | 1883

BRIOKELL, O. J.

— The several objections' to the regularity of the procedure in the Circuit Court have been considered, and we are not of opinion that either of them can be supported. The first is, that it is not shown by the record by whom, or by what authority, the oath was administered to the grand jury. Conceding that it is essential to the regularity of the proceedings that it should affirmatively appear of record that, before the finding of the indictment, the grand jury were properly sworn, the fact now appears clearly and fully. The recital is, that the oath prescribed by .the statute was taken by the foreman, and by the other members of the graftd jury; which can not be true, unless the oath was judicial — unless it was administered by the court, or in its presence, and under its sanction. In practice, it is not usual to state upon the record by whom the oath was administered to the grand or to the petit jury. The recital that they were sworn, includes the statement that the administration o.f the oath was by proper authority.

2. The second objection is, that the plea of not guilty tendered an issue to the country, which the record does not show *483was accepted or joined in by the State.' The acceptance or joinder, if expressed upon the record, would have been merely an affirmation that, for trial, the State, as the defendant had done by the plea, put itself upon the,country ; the similiter, as it was known in common-law pleading, which is merely formal, and its omission an amendable defect. — 1 Bish. Cr. Pr. §§ 801, 1354; 1 Chitty’s Cr. Law, 720; State v. Carroll, 5 Ired. 139.

3. The failure to show on the record that the sheriff returned into court the special venire, or the list of jurors specially summoned for the trial of the cause, can not avail to reverse the judgment. If it was not in fact returned, upon objection interposed in the Circuit Court, the return would have been compelled ; and whatever of benefit the appellant could have derived from it would have been afforded, and whatever of injury was apprehended from the omission would have been obviated. The objection not being interposed in the Circuit Court, and the appellant having voluntarily proceeded to trial before a jury, in the selection of which he participated, the just presumption is, that the return was made, or was waived. — Ben v. The State, 22 Ala. 9.

4. The remaining objection is, that the sentence condemns the appellant to hard labor in the penitentiary, wffiile the legal punishment of the offense of which he is convicted is imprisonment in the penitentiary. The penitentiary, under the statutes, is not a mere place for the imprisonment of convicts: imprisonment in it involves subjection to involuntary or compulsory labor, during its continuance. Describing the labor as hard, does not signify that it shall be of unusual severity : it means no more than that it is compulsory, and continuous during the term of imprisonment. These words might well have been omitted from the sentence; but their insertion does not vitiate it, as they do not subject the appellant to any other than legal punishment, or to labor of any other kind or degree than must have been endured if they had been omitted.

5. The first and fourth instructions recpiested by the appellant, assume that any violent assault, importing peril or injury to the person, may be resisted or repelled, to the extremity of taking the life of the assailant. There is no foundation for such a proposition. Life can be taken lawfully, only in resistance of a felonious assault; an assault threatening or imperil-ling life or grievofis bodily harm. — Whart. Hom. § 480; Pierson v. The State, 12 Ala. 149; Eiland v. The State, 52 Ala. 322.

7. The seventh and eighth instructions are objectionable, if for no other reason, because it is assumed the declarations proved to have been made by the deceased were dying declarations. It is not every declaration made by a deceased person while in *484extremis, or under a sense of impending death, that falls within the condition or class of dying declarations, as known in the law of criminal evidence. The subject of the declarations must be a fact or circumstance attending death, or the cause producing it. These declarations, if relevant or proper evidence for any purpose, had no reference to the facts and circumstances of the combat from which death resulted; but were, at most, only expressive of the opinion of the deceased, as to what would have been the. result if the accused had not fired so quieldy.

7. When the remaining, instructions are taken in connection with the evidence, if they are not abstract, it is obvious they 'could not have been given without misleading the jury, unless other instructions explanatory of them, limiting and qualifying them, had been given. The killing was with a deadly weapon, in the course of a personal conflict, into which each party' — the accused and the deceased — entered without reluctance. If it be true that the deceased was the aggressor, or assailant, the accused can not be held guiltless, until it appears that he had retreated as far as he could with safety to himself. It is the duty of one assailed, “ to abstain from the intentional infliction of death, or grievous bodily harm, until he has retreated as far as he can with safety to himself.” — Eiland v. The State, supra; Pierson v. The State, supra. Neither the bad character of the assailant, nor his past threats and hostile actions, relieve from the duty. These may be looked to, in connection with present demonstrations, in determining whether the accused had a just and reasonable apprehension of immediate, imminent peril to life, or of grievous bodily harm. They do not excuse or justify the taking of life,' when that could be avoided by retreating before an assault, or retiring from a combat into which the slayer enters willingly. This 'court will not reverse a judgment, for the refusal of instructions which have a tendency to mislead the jury. — Dupree v. The State, 33 Ala. 380; 1 Brick. Dig. 339, §§ 60, 61.

SOMERYILLE, J.

— A majority of the court are of opinion, that the judgment of the Circuit Court in this case should be . reversed, because of the refusal to give the seventh charge requested by the appellant. It is no objection to the charge, that it assumes the declaration, proved to hatfe been made by the deceased, to have been a dying declaration. The evidence shows such to be the case, without any conflict; and the matter was so determined by the court, as a question of law, preliminary to its admission in the first instance.

The pertinent portion of this declaration is, “Iwould hme gotten him” [Brown], “if he had not been too guide for me.” *485The evidence shows that Brown and the deceased were engaged in a very close hand-to-hand contest, the former using a pistol, and the latter, as some of the witnesses testify, having a knife in his possession. This declaration of the deceased does not seem to us to be the mere expression of his opinion, but rather characterizes, as matter of fact, both the animus and the activity with which he engaged in the affray with the view of assailing his antagonist. It had reference to the facts and circumstances constituting the affray, and producing the death of the declarant. What should be the weight or effect of this declaration, as evidence, is a matter exclusively for the determination of the jury, and on this point we abstain from intimating any expression of opinion.

For this cause the judgment must be reversed, and the cause remanded. In the meanwhile, the prisoner will be retained in custody, until discharged by due process of law.