Davis v. State

Nov 15, 1890

Versions:92 Ala. 20

WALKER, J.

1. The objection, sought to be raised in this court for the first time, that the record of the Circuit Court, in that it enumerates only fourteen persons who were"sworn as grand jurors, does not show the due organization of a grand jury of fifteen persons as required by a special act of force in Cherokee county, must be disposed of adversely to the appellant on the authority of the decision of this court in the case *25of Tanner v. The State, supra, p. 1, which, ás to the subject-matter of the objection, presented a state of facts similar to that in this case.

2. When the case was called for trial in the Circuit Court, the defendants announced that they were not ready, because of the absence of certain witnesses, who had been duly summoned in their behalf. The testimony of the witnesses had been taken, reduced to writing, and signed by them on a preliminary examination of the defendants. The State was put upon the admission of the testimony of the absent witnesses as preserved in that form, and also of statements prepared by the defendants as to such evidence by said absent witnesses as was not drawn out on the preliminary trial; but the court declined to put the State upon the admission of a statement, then presented by the defendant, of what said witnesses would testify to if present, so far as said statement extended to matters covered by their testimony as preserved by the examining magistrate. The appellant excepted to the action of the court in so confining him in reference to the statement to be presented to the counsel for the State for admission. The exercise of the discretion vested in the trial court, in reference to such matters, is not revisable here. When a party to a cause applies for a continuance, if the court is satisfied that all reasonable grounds for the application are removed by an admission of the adverse party, it may require the trial to proceed. We will not say that a case may not be so presented here as to show that there was such a gross abuse of the discretion vested in the trial court in this regard, that a reversal would be plainly necessary, in order to afford a party an opportunity for a fair trial. But this is no such case. The good faith of an application for a continuance, on account of the absence of witnesses, might well be doubted, when the party making the application insists 'upon being allowed the privilege of wholly rejecting the testimony of such witnesses, as regularly taken under official supervision, and subscribed and sworn to by themselves. The defendant was allowed to state such additional testimony as he expected to elicit from said witnesses. The action of the court, in the circumstances, in declining to allow the defendant unrestrained license in stating what the absent witnesses would swear to if present, has all the appearance of a fair exercise of discretion, for the purpose of withholding from the defendant the opportunity of forcing the counsel for the State to the alternative of electing to submit to an imposition, or to a continuance of the case.— White v. State, 86 Ala. 69; De Arman v. The State, 77 Ala. 10; Dean v. The State, 89 Ala. 46.

*263. The court properly excluded evidence of the alleged custom of the neighborhood in which the defendant and the deceased lived. Morelock was entitled to the exclusive possession of his own house. He could there receive and entertain such persons as it was his pleasure to admit. It was equally his right to exclude other persons whose presence was not agreeable to him. He enjoyed this absolute dominion by virtue of his ownership or lawful possession. No neighborhood habit could abridge the rights in his residence secured to him by the law. The practice of young men in that community to go uninvited to entertainments at private houses could not ripen into a custom in the legal sense of that term. A custom is a law established by long usage. No unreasonable invasion of recognized personal or property rights can be justified on the ground of usage. One’s habit to permit or encourage his acquaintances to visit his residence at will, can never clothe them with a higher privilege of entry upon his premises than is conferred by an express or tacit license, which may be revoked at any time. Such privilege can not be claimed by an acquaintance, who knows that his presence is not desired, and that an implied invitation which may be availed of by others does not extend to him. A mere permission, which may be presumed from the previous neighborly relations and acts of the parties, no matter how long or by what number of persons it may be enjoyed, could not grow into a legal right. In any particular case, the question of the propriety of the entry by one person into another’s residence would depend upon the existence of an express or implied license, and not upon a custom set up as the support of an alleged right. The custom proposed to be proved is unreasonable, its establishment would involve an unauthorized abridgement of the ancient common-law right of the proprietor to maintain the privacy and inviolability of his home as he may choose to use it for the pleasure, comfort or protection of himself, his family or his friends. Such an usage cannot confer legal rights, or afford justification for conduct otherwise unauthorized. — East Birmingham Land Co. v. Dennis, 85 Ala. 565; Winder v. Blake, 4 Jones’ Law (N. C.), 332; Lawson on Usages and Customs, 15, 332.

4. The defendant, on the direct examination of the witness Martha J. Morgan, elicited a part of a conversation she had had with Ida Morelock, a daughter oí the deceased. This having been done, it was competent for the counsel for the State to draw out, in the cross-examination, any other statement. made in that conversation in reference to the same matter which had not already been testified to. On this ground, *27the court properly overruled the defendant’s objection to the question asked that witness by the counsel of the State. Dodson v. The State, 86 Ala. 60.

5. The proposed evidence as to what the deceased’s son, Jim, did or said in his absence was merely hearsay, and was properly rejected. The deceased was in no manner connected with, or bound by what his son may have said to other persons, in reference to the defendant having had permission to visit the house on the night before the previous Christmas.

6. The two charges given at the instance of the State were pertinent to the evidence, and they correctly assert the familiar doctrine as to the duty of retreat, when retreat with safety is practicable, and the necessity of taking life may be thereby avoided. — Lee v. The State, supra ; Carter v. The State, 82 Ala. 13.

7. There was much evidence tending to show that the relations between the deceased and appellant were such as to. warn the latter that any attempt by him to enter the former’s residence would be resented, or resisted. The evidence- also tended to show that, after the appellant was shot, he advanced into the house in pursuit of the deceased, and there inflicted the fatal wound. In this state of the evidence, the questions of the defendant’s freedom from fault in'bringing on the difficulty, and of the impracticabilhy of retreat by him, after he was-shot, could not be eliminated from the case. That Morelock was wrong in shooting, could not alone afford justification to-Davis. The proposition of the first charge requested by defendant is confined to the inquiry as to Morelock’s fault in firing the first shot. Nothing is there asserted in reference to-the offense for which the defendant was on trial. The charge •was calculated to withdraw the minds of the jury from the question really at issue, and to convey the impression that, if Morelock could not be excused for what he did, it would follow from that, that Davis was justifiable in killing him. It was properly refused. The same criticism applies to the-tenth and twelfth charges refused. A proposition of the fifth charge, which was refused, is, that Davis had the right to-pursue Morelock and kill him, if he reasonably thought that course necessary to prevent any further bodily harm. The justification of the killing is not rested upon the necessity of averting danger to life or limb, or of great bodily harm, but of any bodily harm, however trifling or insignificant, though it may not involve even substantial personal inconvenience. It is plain that the law can not recognize any such light excuse for the taking of human life. The eighth charge was defective, in pretermitting all inquiry as to defendant’s freedom *28from fault in pursuing the deceased into the house, and there •exposing himself to further attack. The evidence showed that, after the defendant was shot, he proceeded some distance farther in the direction of the deceased, and that the deceased ■attempted to úse the axe only after the defendant was shot, and after he had advanced into the house. In view of the evidence, the charge should have hypothesized the defendant’s freedom from fault, not only in going to the house, but also in entering therein after he was shot, and putting himself in reach oi' the axe, or other weapon used by the deceased. He was not relieved of the ditty to retreat, if, after being assaulted, lie advanced into further peril, and thereby- unnecessarily exposed himself in a position from which escape with safety was impracticable. Charges 13, 1C, 19, 21 and 21, are each defective in ignoring one or both of the questions as to defendant’s fault in bringing on the difficulty, and as to his opportunity to retreat before he fired the fatal shot.

Counsel for appellant have assigned errors on the record, without referring to many exceptions which were reserved on the trial. The conclusions of the court have been expressed ■upon all matters which were assigned as error, or suggested in the oral arguments, or in the briefs, All exceptions, whether insisted upon by counsel or not, have been carefully ■considered, and no error has been discovered in the record.

Affirmed.