86 Ala. 613 | Ala. | 1888
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
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.