Cribbs v. State
86 Ala. 613
Ala.
1888
Check Treatment
CLOPTON, J.

Threats by the accused against the party slain are not rendered inadmissible, because made a few months before the homicide, nor because th.ey may be in some respect conditional, nor because the defendant, on being advised or cautioned, may immediately retract them. Though they may not be, of themselves, convincing evidence of guilt, they are admissible in evidence when followed by the homicide, as evincing the criminal intent, from which, in connection with other circumstances, guilt may be logically inferred. Their probative force is a question for the jury, dependent on their nature, and the circumstances under which they were made. Such considerations do not affect their admissibility.—Winslow v. State, 76 Ala. 42; Ford v. State, 71 Ala. 385; Ex parte King, p. 620.

At the request of the prosecution, the court instructed the jury, “malice, in law, does not necessarily mean hatred, or ill-will, but the intentional doing of an unlawful act.” The accuracy of the definition must be determined in view of the character of the crime, with which the defendant is charged. Legal malice, sufficient to maintain a civil action for malicious prosecution, or a resort to legal process, may exist whenever a wrong and unlawful act is willfully and purposely done. As usually defined, malice, in its legal sense, does not necessarily denote malevolence, or enmity towards a particular individual, but also signifies an intent or mental state, evinced by the commission of an unlawful and injurious act, without justifying or excusatory cause. This definition, however, is not sufficiently accurate and comprehensive, when *616applied to malice as an essential ingredient of murder. In Hadley v. State, 58 Ala. 31, it is thus defined: “Malice, as an ingredient of murder, is but a formed design, by a sane mind, to take life unlawfully, without such impending danger to be averted thereby as will render it excusable, and without such provocation as will repel the imputation of formed design.” Manslaughter in the first degree, which is the voluntary depriving a human being of life, is unlawful. The characteristic which distinguishes it from murder, is the absence of malice. Though the taking of life under provocation is neither justifiable nor excusable — is intentional and unlawful; yet, the provocation may be so great, and calculated to exasperate, as to deprive the homicide of its malicious character. The definition of malice, as given in the charge, would constitute every intentional and unlawful homicide malicious, though committed in heat of passion, excited by sufficient provocation. Malice, as an ingredient of murder, may be defined, in legal phrase, as the killing of a human being, without legal justification, excuse, or extenuation. Nye v. People, 35 Mich. 16.

The instructions of the court, relating to the plea of self-defense, are in accord with our uniform rulings. The charge requested by defendant, ignores essential elements of the doctrine.—Carter v. State, 82 Ala. 13; Brown v. State, 83 Ala. 13. The other charges may be obnoxious to criticism; one as singling out and giving undue prominence to the threats; and the other, as assuming that there is evidence tending to show that defendant entered into the combat dangerously armed with a knife or pistol. The evidence discloses that the accused only had a pocket-knife, which he did not attempt to draw until after the struggle had commenced. Such charges should be avoided as far as practicable, being calculated to unduly impress the minds of the jury, and prejudice the defendant. When given, however, they will not work a reversal of the judgment, unless it appears that injury resulted.

Beversed and remanded.