Finch v. State

81 Ala. 41 | Ala. | 1886

SOMERYILLE, J.

— The juror, Julian, having been a member of the grand jury which found the indictment for the offense charged, was properly challenged for cause. Birdsong v. State, 47 Ala. 68.

2. It being made to appear, by the tendency of the evidence, that the deceased was killed by being cut with a knife, it was competent to show that the defendant had borrowed a knife from the witness, Sanford, a short time before the difficulty, as an act of preparation for an expected difficulty; and the description of the instrument was equally relevant.

3. The confession of the defendant, South, as to having had a previous difficulty with deceased in Texas, was clearly admissible against him to prove malice and motive for the killing.— Garrett v. State, 76 Ala. 18. As the court admitted this evidence against South only, the appellant, Finch, who alone takes this appeal, could not object to this ruling as at all prejudicial to himself.

4 We need not consider the assignment of error, based on the refusal of the court to discharge the appellant upon the alleged ground that a prima facie ■ case had not been made out against him when the State had closed the evidence for the prosecution. The subsequent evidence supplemented this defect, if it existed, and the action of the court, if error, was without injury.-

5. The first charge requested by the defendant, Finch, was properly refused, because it ignored the duty which the law imposed upon him to retreat when attacked by deceased, provided he could have safely and conveniently done so without putting himself at apparently a probable disadvantage. — Story’s Case, 71 Ala. 329; DeArman’s Case, 77 Ala. 10 ; Tesney’s Case, 77 Ala. 33.

6. The eighth charge given by the court, at the request of the solicitor, was free from error, and the second charge requested by the defendant, bearing on the duty of the defendant to retreat, was properly refused. The mere fact that the act of retreating would have compelled defendant to let loose the mule which he was holding, could not relieve him of this duty. That would be a trivial inconvenience when weighed in the balance against the alternative and grave necessity of taking human life.

7. There is no rule of law which compels jurors to believe confessions made by a defendant when he is sober in preference to those of a contradictory character, made when drunk. The relative credibility of the statements is a question for the jury. The third charge requested by the defendant, South, was- erroneous, and was properly refused. The appellant, Finch, moreover, could not be injured by this charge, even if it were erroneous.

8. It is not every belief, however honest, which a defendant may entertain as to the existence of great peril to life or limb that will justify his taking life. But it must be a reasonable belief, or one based on reasonable grounds. 'The fifth charge requested by the appellant was erroneous in failing to make this distinction.

9. The sixth charge was misleading in seeking to separate the testimony of the defendants from the conflicting testimony of other witnesses bearing on the same facts, so as to ask a verdict of acquittal based on their statements alone and unqualified. In ascertaining the truth of any fact the jury should look to the whole evidence bearing on such fact, and not to a part only. — Jordan v. Picket, 78 Ala. 331. This principle does not of course preclude the defendant from asking any proper charge based on his own phase of the case as established by the entire evidence.

The other rulings of the court are without error, and the judgment must be affirmed.