Defendant killed one Watters by shooting him with a pistol, was convicted of murder in the • first degree, and sentenced to imprisonment for life.
Defendant admitted the killing, which indeed had been committed in a store at Siluria and had been witnessed by a number of people, and sought to excuse himself on the ground of self-defense.
Defendant was allowed to show that about 30 minutes before the killing, and while he and deceased were waiting to be paid off at the mills in the neighborhood where they worked together, deceased had made an attack upon him and threatened him with a mill hammer. This testimony, going to show the fact and general nature of a previous difficulty, was not objectionable to the state, for one tendency of it was to prove defendant’s motive and malice; it may also have served a proper purpose for defendant, if the jury had beeh in doubt whether to accept his version of the circumstances of the encounter (Beasley v. State, 181 Ala. 28, 61 South. 259), but, when defendant sought to go .further into proof of the details and merits of the previous occasion, the state’s objections were properly sustained, on the grounds of administrative necessity, and because the merits of defendant’s plea were not dependent upon the inquiry whether defendant or deceased had been at fault in the previous difficulty (1 Mayf. Dig. §§ 331, 377, et seq.). If the evidence of this previous difficulty may have served any legitimate purpose of defendant in the way of showing that the deceased was the aggressor on the occasion of the fatal encounter, he had the full benefit of all he was entitled to' prove in that connection.—Watts v. State, 177 Ala. 24, 59 South. 270.
Evidence of defendant’s declaration under the circumstances and to the effect stated above was offered on the theory, we suppose, that the fact that defendant went from his home to the store where the killing was done was relevant to the issue of guilt vel non, and that the declaration itself tended to exculpate accused by rebutting the inference of malice or a design to take the life of deceased, formed before the act. If there had been auy issue as to whether defendant was at the store and committed the deed charged against him, the fact of his declaration upon setting out that he intended to go to the store would have been an inculpatory admission provable against defendant, as all such admissions are.
If, however, the declaration which defendant proposed to prove be held to shed light upon the circumstances of the homicide committed subsequently and after a distinct interval, as the majority of the court holds, then it was self-serving and was properly excluded on the authority of Jones v. State, 174 Ala. 53, 57 South. 31. It is a general rule of broad application that self-serving declarations are not admissible in behalf of the declarant.—Martin v. Williams, 18 Ala. 190; Oliver v. State, 17 Ala. 587. The propriety of applying the general rule of exclusion in this case is strongly indicated by the undisputed fact that, shortly before the declaration in question, defendant and deceased had- been engaged in a serious difficulty, so that the declaration of intention, so far as it may possibly be held to relate to
Defendant testified that deceased had first assaulted him with a knife, and that one Howard had “taken out after him” and shoved him as if to help-deceased. A knife was found near the body of deceased as he lay unconscious upon the floor where he fell after receiving-fatal wounds at the hand of defendant. A witness for the state testified that defendant had returned to the spot and dropped the knife there. The testimony of Jeff Williams, a witness for defendant, to the effect that Howard had asked him to testify that the knife belonged to the defendant, which he refused to do, could have been admissible only to impeach Howard by showing his interest and activity in the prosecution. But Howard did not testify, and so was not the subject of impeachment. It was shown that he had gone to parts unknown.
The probative force of the testimony of Jeff Williams that, at some indefinite time in the past and for some indefinite period, he had worked the same loom, or in the same room, with defendant, and that the only knife he ever saw defendant with was a small pearl-handled knife, in view of the whole evidence, which we have not thought it necessary to state, was negligible, and we do not find reversible error in its exclusion.
Charge 2, refused to defendant, was well refused because it was self-contradictory.
Charge 4 was well refused because it did not predicate the probability of innocence which would require an acquittal as arising out of the evidence. The substance of the charge with this needed amendment was given to the jury in charge 26.
The burden was not on the state, in the situation described in charge 10, to prove that deceased was free from fault in bringing on the fatal encounter, though it was open to the jury, upon belief of defendant’s testimony, to find a state of facts which put upon the prosecution- that burden in respect of defendant’s fault.
We find no evidence in the record calling for a statement of the law proposed by charge 13. The charge was well refused because abstract.
The evidence did not present a case calling for a statement of the doctrine as to the right of accused to act upon the reasonable appearance of danger to life or limb. There were but two alternative findings possible, either defendant killed deceased without any demonstration of offense or defense, on the part of deceased, or deceased first made an actual assault upon defendant with a deadly weapon, as defendant testified. The case involved no question as to the reasonable appearance of a danger that did not in fact exist. In other words, charge 19 was abstract. This charge was approved in Snyder v. State, 145 Ala. 33, 40 South. 978, cited’by defendant. The report of the case does not contain a statement of the relevant facts. The decision was based upon Kennedy v. State, 140 Ala. 1, 37 South. 90. We
Charge 27 asserts an abstract proposition, applicable to all cases where a person is attacked with murderous intent. But the proposition does not hold good in all cases. If a person provokes a difficulty, in the course of which his adversary makes a murderous attack upon him, he is not entitled to the benefit of the limitation upon the doctrine of retreat stated in the charge.—Storey v. State, 71 Ala. 329; Abernathy v. State, 129 Ala. 85, 29 South. 844.
Charge 30 combined the faults we have found in charges 19 and 27.
Charge 33 was properly refused. Defendant may have fired the fatal shot as the consequence, in part, of sudden passion aroused by a blow and yet have entertained .malice. When this is the case, the homicide, otherwise indefensible murder, is not reduced to manslaughter by reason of the passion.—Martin v. State, 119 Ala. 1, 25 South. 255.
The state was not required to show that deceased was free from fault in bringing on the difficulty, as we have already pointed out. Charge A, as it is 'written in the record, was faulty because it asserts the contrary, and was for this reason refused without error.
Charge E was misleading. Defendant, under the evidence, was not entitled to the bald statement that he had a right to- go to the store where the fatal difficulty occurred, because the state’s evidence tended to sIioav that he knew the deceased was there and Avent there Avith his mind bent upon mischief. In vieAv of this tendency
Reversed and remanded.