Davenport v. State, 85 Ala. 336

Davenport v. State

85 Ala. 336 | Ala. | 1888

SOMERVILLE, J.-

— The defendant is indicted for carrying a pistol concealed about his person. In such a case, the statute provides, that the defendant may give evidence, by way of defense to the prosecution, “that, at the time of carrying the weapon concealed, he had good reason to apprehend an attack; which the jury may consider in. mitigation of the punishment, or' justification of the offense” — Crim. Code, 1886, § 3775.

The evidence tended to show that one Willingham, who was a witness for the State on the trial, had threatened the defendant’s life; and the character of said Willingham was that of a violent, turbulent and dangerous man. In connection with this evidence, it was proposed by the defendant to prove that, a short time prior to' the time of the alleged charge, the said Willingham had shot two men in the neighborhood, one of whom was his brother. This evidence was excluded by the court, on motion of the State; and properly so, particular acts of violence not being admissible to prove general character. — Jones v. State, 76 Ala. 9.

The effort to impeach the witness, on the direct examination, should have confined the inquiry to his general character, or his general character for truth and veracity. It was not competent to restrict the inquiry merely to character “for honesty.” — Holland v. Barnes, 53 Ala. 83; Jackson v. State, 77 Ala. 18. The court did not err in its rulings on the evidence bearing on this question.

To justify the defendant in carrying the pistol concealed, he must have had good reason to apprehend an attack on his person; and it was competent for the jury to consider the *339dangerous character of one who had threatened him, as a fact tending to show reasonable grounds for such apprehension. But the unfounded belief of defendant that he was in danger of being attacked, not supported by reasonable grounds, would neither excuse nor mitigate the offense of carrying a weapon concealed about his person. The first charge asked, and refused by the court, was properly refused, because, in its first alternative phase, it predicated an acquittal upon the defendant’s mere belief that he was in danger of attack, and not upon the fact that he had good reason to apprehend it.

The second charge was properly refused, for two reasons, if not more. It is based upon the testimony of certain witnesses whose names do not appear in the bill of exceptions, and is therefore abstract; and it infringes the prerogative of the jury, in asserting the degree of weight to which this testimony is entitled.

Judgment affirmed.