23 Ala. 28 | Ala. | 1853
We will first consider the questions presented by the refusal of the court to give the charge requested.
This charge was, in effect, that if the prisoner acted under a well grounded apprehension, created by all the circumstances, that it was necessary to take the life of the deceased to protect the possession of his own dwelling house, he could not be convicted of murder in either degree. To ascertain whether this charge asserted a sound legal proposition, as applicable to the evidence, we must first determine the extent and degree of protection which the law affords to the inhabitant of a dwelling house in maintaining his possession.
Lord Hale says: “ If A fears, upon just grounds, that B intends to kill him, and is assured that he provides weapons, and lies in wait so to do, yet without an actual assault by B upon A, or upon his house, to commit that fact, A may not kill B by way of prevention; but he must avoid the danger by flight or other means; for a bare fear, though upon a just cause, gives
Again: “A is in possession of the house of B. B endeavors to enter upon him. A can neither justify the assault or the beating of B, for B had the right of entry into the house; but if A be in possession of a house, and B as a trespasser enter without title upon him, A may not beat him, but may quietly lay his hands upon him to put him out, and if B resists and assaults A, then A may justify the beating of him, as of his own assault. But if A kills him in defence of his house, it is neither justifiable nor within the privilege se defendendo, for he entered as a trespasser, and therefore it is at least common manslaughter and he cites Harcourt’s case in support of this, who “being in possession of a house, A endeavored to enter, and shot an arrow at them within the house, and Harcourt from within shot an arrow at those who would have entered, and killed one of the company ; which was ruled manslaughter, and not se defendendp, because there was no danger to his life from those without.”' — 1 Hale’s P. C. 485-6.
Mr. East, in his Crown Law, lays down the same doctrine, almost in the words of Lord Hale, and cites Cook’s case, reported in Cro. Car. 537, which was where the sheriff’s officer and bailiffs, having civil process against Cook, called to him to open his doors because he had such process; whereupon Cook forbid their entrance; upon which they broke the window, and then came to the door and tried to force it open, breaking off one of the hinges, upon which Cook discharged a musket and killed the officer, and it was held manslaughter. — East’s Crown Law.
Hawkins says : “ Neither can a man justify the killing of another in defence of his house or goods, or even of his person, from a bare private trespass; and therefore he that kills another who, claiming a title to his house, attempts to enter it by force, and shoots at it, or that breaks open his windows in order to arrest him, or that persists in breaking his hedges, after he was forbidden, is guilty of manslaughter. — Hawkins, 83.
It is to be remarked, that every case cited by these authors, in relation to a homicide committed upon an assault of the dwelling house, was one of actual positive force, exceeding a mere trespass; and in the case of the trespasser entering without title, while Lord Jlale admits that, in case of resistance and assault,
The rule as to the extent of protection to the dwelling being ascertained, there is hut little difficulty in its application to the facts as stated upon the record. It is conceded most fully, that, if the evidence shows an assault upon the house, or the person, under circumstances which would create a reasonable apprehension — that is, a just apprehension in the mind of a reasonable man — of the design to commit a felony with force, or to inflict a personal injury which might result in loss of life or great bodily harm, the danger of the design being carried into execution being imminent and present, the person in whose mind.such an apprehension is induced, and over whose, person or property such danger is impending, may lawfully act upon appearances and kill the assailant. The law, in such a case, would not require that the danger should he real — that the peril should actually exist; hut it does require that the appearances should be such as would excite a reasonable apprehension of such peril; and. if such appearances do not exist, the killing would he either murder or manslaughter.
Assuming, therefore, that the deceased came to his death by the act of tho prisoner, and by the use of a deadly weapon, and in the aspect of the case as presented by the charge requested, the question is simply whether the act was done under the necessity, real or apperant, which the .law requires. If it was not, it follows necessarily that the prisoner was guilty either of murder or manslaughter; and if there was any evidence which tended to show that such necessity existed, the charge requested should have been given. Without refei’ring to the evidence in detail,
In relation to the threats of personal violence made by the deceased towards the prisoner, which were excluded, we also think there was no error. The record shows they were not communicated to the prisoner, and we cannot therefore regard his action as having been influenced by. them. But it is urged these were admissible to show the character of the conduct of the deceased in entering the house after he had been warned not to do so. The utmost that the threats could show in this aspect was, that the deceased entered the house of the prisoner with the intention of inflicting personal violence upon him, but the record does not show that any such violence was offered or attempted; besides, we are not informed as to the precise character of the threats,
The only remaining question is, whether the court erred in its rulings in relation to the testimony of Goree. It is urged, on the part of the prisoner, that the objection to this evidence should have been sustained, for the reason that the question asked by the witness assumed his guilt, and was therefore calculated to entrap him. We have found no case which held that a question which assumed the guilt of the prisoner, was necessarily calculated to entrap him; and where that is not the case, we can perceive no sound reason for rejecting the evidence, upon the ground alone that the question in reply to which the confession was made, assumed the guilt of the party charged. The true test, we apprehend, is to ascertain whether the confession was made under circumstances which were calculated to render it untrue; and upon this prineiple, if it be made under the slightest inducement of hope or fear, excited by one having authority, it cannot be received. There may be questions so artfully put that the party to whom they are directed may, in answering them, not be aware of the effect of his answer; and, if admitted, it may be regarded as a confession when it was not intended as such by him; and this, we think, was the most that was meant by the dictum in the case of Mosler, 4 Barr 264. The case of Clarissa v. The State, 11 Ala. 57, is not authoritative on this point, as the decision was correct on the ground that the confession was made under the influence of the previous punishment the slave had received. In the case before us, we do not think the question was at all calculated to entrap the prisoner, and the objection on that ground is not tenable.
It is, however, insisted that the evidence should have been rejected, for the reason that neither the question nor the answer pointed directly to the commission of the offence. The question, it is true, did not refer in direct terms to the act with which the prisoner was charged; but we think that, under the circumstances, it could not properly have been referred to any other act.
Neither do we think the court erred in overruling the objection either to the question or the answer, as to the manner of the prisoner. His answer to the question which preceded the one objected to, was of a character which rendered his manner, at the time it was said, very proper to go to the jury, for the purpose of determining the degree of weight to which his answer was entitled. If his manner had been that of the jester or buffoon, however unsuitable it would have been to the occasion, it might have diminished the weight that the jury would otherwise h'ave attached to it. In the answer of the witness, we see nothing to object to. It used a term perfectly well understood, when applied to an answer, and was no more a conclusion than if he had used the word “ quick,” or “ angry.”
There is no error in the record, and the judgment is affirmed.