Dolan v. State

Dec 15, 1886

Versions:81 Ala. 11

STONE, C. J.-

— The defendant, a white man, was charged and tried for the murder of one Winbush, of African lineage. The trial court, in the general charge to the jury, said: “Some argument has been made by the attorneys in the cause upon the question of color. I chai'ge you that it is just as much the duty of a jury to convict a white man of the murder of a colored man, as it would be the duty of a jury to convict a colored man for the murder of a white man, if you believe from all the evidence, beyond a reasonable doubt, that the white man is guilty.”

*17Charging further, the court said : “ Some argument has been made as to the color of the witnesses. It is immaterial whether the witnesses were white or black; and if you believe beyond a reasonable doirbt that black witnesses are telling the truth, it is as much your duty to convict on their evidence as though they were white.”

There was no error in giving either of these charges.

There was testimony tending to show that the guu with which the fatal injury was inflicted in this case was loaded with small —either squirrel or bird shot. The shot took effect in the chest and felled the deceased, who died almost instantly. It is contended in argument that a gun thus charged is not per se, or as matter o£ law, an instrument calculated to produce death, and hence the law does not presume malice from its use ; that deadly character not being stamped on it as matter of law, it was for the jury to determine, under all the evidence in the cause, whether or not it was a deadly instrument. Several charges were asked, intending, as we suppose, to raise this question. The following is a sample of the charges asked and refused, bearing on this subject: “ In this case the law raises no presumption of malice from the use of a deadly weapon.” This charge is numbered 8 of those asked for defendant. Charges numbered 7 and 10, each, asserts the same principle. They are faulty, if for no other reason, because each of them assumes as fact that the gun, loaded as it was, was not a deadly weapon, when there was only parol proof tending to show the character of shot with w'hich it was charged. Whatever the number or size of the shot, they did, if the testimony be believed, produce death almost instantly. — Ex parte Nettles, 58 Ala. 268. If under any circumstances these charges should be given, they must be so framed as to submit to the jury the inquiry of fact as to the character of shot with which the gun was loaded. —Ashworth v. State, 63 Ala. 120; Bain v. State, 70 Ala. 4; 3 Br. Dig. 114, § 122; Sandlin v. Anderson, 76 Ala. 403.

It is very true that one threatened is not required to leave his own home to avoid a difficulty. — Jones v. State, 76 Ala. 8; Storey v. State, 71 Ala. 385. And it is equally true that one who is assailed in such manner as to endanger his life, or to expose him to grievous bodily harm, who is without fault, and who has no other reasonable mode of escape, may resist, even to the taking of his assailant’s life, if necessary to save himself. But, to come within this rule, the danger must be imminent, impending, present. “ There must be a present, impending peril to life, or of great bodily harm, either real, or so apparent as to create the bona fide belief of an existing necessity.-” — Jackson v. State, 77 Ala. 18; Tesney v. State, *18Ib. 33; Prior v. State, Ib. 56; Henderson v. State, Ib. 77; Ex parte Brown, 65 Ala. 446; Storey v. State, 71 Ala. 329 ; DeArman v. State, Ib. 351; Jones v. State, 76 Ala. 8 ; Ex parte Nettles, 58 Ala. 268; Pritchett v. State, 22 Ala. 39. The danger, or apparent danger must be present, not prospective; not even in the near future. If it be prospective, it may, in most cases, be averted in various ways ; as by taking shelter in one’s own dwelling, having the would be assailant arrested, &c. Human life must not be sacrificed under the apprehension of a prospective, probable danger, even in the near future. The city court did not err in refusing the charges numbered respectively 11, 13, 14, 15 and 16. And charge numbered 12 was misleading in this, that it was liable to create the same erroneous impression, as charges 11, 13, 14, 15 and 16 would have created. Such charge should be refused. Adams v. State, 52 Ala. 379 ; Thrash v. Bennett, 57 Ala. 156 ; Brewer v. Watson, 71 Ala. 299; Hodges v. Coleman, 76 Ala. 105.

Charge numbered 9, while it may assert a correct proposition of law, manifestly bore no relation to any testimony before the jury, and furnished to that body no guide in passing on testimony before them. It was evictently intended as an argument, or, perhaps, as an answer to an argument, which had been made before the jury. We are not prepared to announce that a refusal to give such charge is ground of reversal. — Adams v. Thornton, 78 Ala. 489 ; Murphy v. The State, 55 Ala. 252; Hughes v. State, 75 Ala. 31.

But there is another reason why the' charge should not have been given. The defendant had been examined as a witness in his own behalf. The statute secured him this right. The State, prosecuting him, was authorized to inquire into his character — his general character (Ward v. State, 28 Ala. 53), but to what end ? Simply for the purpose of attacking his testimony, and showing he was unworthy of belief. General inquiry into his moral character was permissible, but only permissible to the extent it affected his credibility. Eor any purpose beyond this, the State was not permitted to press the inquiry, unless the defendant had first put his character in issue, b v offering testimony that it was good.

The present case was an indictment and trial for murder. The defendant was permitted to prove, and did prove that the deceased was a violent and turbulent man. No proof was made of the defendant’s character for peacefulness, or the contrary. None could have been made by the State, unless the defendant had first put his character for peacefulness in issue, by attempting to prove it good. . The record authorizes us to affirm that stress was laid in the defense *19on deceased’s violent and turbulent character, and many charges were asked on that hypothesis. The State’s counsel, in argument, replying to the charge of violence urged against deceased, stated the defendant had not put his own character in issue; and more than intimated that if he had done so, he, the prosecuting attorney, was prepared with witnesses to prove it bad. We need not inquire whether, in this, counsel wentbeyond legitimate bounds. It was not objected to, and no question is raised upon it. In reply to this argument and statement by the prosecuting attorney, charge numbered 9, we have a right to infer, was asked by defendant. It was misleading. The jury would have inferred from it, that the whole character of defendant had been laid open to proof, and that it was competent for the State, in the first instance, to make proof attacking his character for peacefulness. We have shown above that only so much of his moral character as reflected on his credibility as a witness was open to assault by the State in the first instance. — Clark v. State, 78 Ala. 474. A character for violence or turbulence sheds no light on the credibility of a witness; and such testimony was not admissible, unless the defendant had first put bis character for peace in issue. — Whar. Cr. Ev. § 64; Rex v. Rowton, Leigh & Cave, 520; Roscoe’s Cr. Ev. 100,101; 1 Bish. Cr. Proc. §§ 1112, 8. In the case of Rex v. Rowton, Cockburn, C. J., said: “ What you want to get at is the tendency and disposition of the man’s mind towards the committing, or abstaining from committing, the class of crime with which he stands charged.” — 1 Brick. Dig. 513, § 914; 3 Brick. Dig. 227, §§ 684, 5.

It is contended for defendant that in two separate paragraphs of the general charge, each of which was excepted to, the court assumed that the gun with which the killing was done, was a deadly weapon. Now, the use of a deadly weapon, when death ensues, is evidence from which, unexplained, malice may be inferred. Malice is an ingredient of murder, but not of manslaughter. Neither of these paragraphs asserts that a killing under the circumstances postulated would be murder. The assertion is that such killing would be manslaughter. This is not the equivalent of an assertion that the gun, loaded as it was, was a deadly weapon. Nor does either charge or paragraph assert as fact that the gun was a deadly weapon. Each is stated in hypothetical form in all its essential constituent facts, and each fairly left to the jury the ascertainment of the constituent facts. There is nothing in these exceptions.

There is no error in the record.

Affirmed,