49 So. 788 | Ala. | 1909
Lead Opinion
This is the second appeal in this -case. See Fowler v. State, 155 Ala. 21, 45 South. 913. The evidence on the last trial, as on the former, was wholly circumstantial as to the cause of the death of the person charged in the indictment to have, been mur
As to how the bruises, if such they were, were produced — whether by blows given with the fist or with some instrument — there was no positive evidence. These were matters rested in inference, and to be ascertained and determined from the nature and character of the described bruises, and were, of course, questions of fact exclusively within the province of the jury. From the tendencies of the evidence it was as open to the jury to find, if death resulted from blows inflicted, that such blows were given with the fist, as it was to find that they were given with a stick or some other instrument; and on this state of the evidence we are of the opinion that the defendant was entitled to have the court charge the jury as to manslaughter in the first degree, in the absence of evidence of a positive intention, and to this extent the opinion on the former appeal is modified.
When this case was here on a former appeal (155 Ala. 21, 45 South. 913), it was said by the court, speaking through Denson, J.: “There is no testimony tending to show the circumstances attending the killing, or to show that it was done in heat or passion; nor is there
As a general proposition of law, an actual intent to Trill is not an essential ingredient in either the crime of murder or of manslaughter in the first degree. The principle in question is well stated in Lewis v. State, 96 Ala. 6, 11 South. 259, 88 Am. St. Rep. 75, where, in speaking of manslaughter in the first degree, it is said: “An actual intention to take life is not an essential element in this offense, or, indeed, in murder. The voluntary setting in motion or application of unlawful force, or the doing of an act greatly dangerous to the lives of others, whereby death ensues, will suffice to supply the legal elements of evil intent, however free the action may be from actual purpose to kill.” Again, in Reynolds v. State, 45 South. 894, this court, speak
We adhere to the law as above laid down in the cited eases; and, in so far as there is anything in what is said in the opinion in this case on the former appeal opposed thereto, to that extent it is overruled. On the law as above stated, and under the evidence in this case, we are of the opinion that the written charges numbered from 1 to 6, which were refused to the defendant, should have been given. They are unlike charges 3, 5, and 6 condemned on the former appeal, which only hypothesized the absence of an actual intention to kill.
The only other question relates to the exclusion of the testimony of Mrs. Sam Holland, on the objection of the state, as shown on page 20 of the transcript. This evidence was irrelevant, and there was no error in sustaining the objection thereto.
For the errors indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
Dissenting Opinion
(dissenting). The facts disclosed by the present record do not make a case materially different from the case as presented by the record on the former appeal. The general statement of facts in the opin
Conceding that there is no direct testimony that the defendant killed his wife, yet it cannot be denied, and is not denied, that it was open to the jury to find, from the evidence, that she came to her death by violence, and that defendant inflicted that violence. These being questions for the jury, and the jury having determined them against the defendant, the next and only other inquiry was the degree of the defendant’s guilt. The defendant, it must be remembered, makes no pretense of self-defense, and, indeed, so far as the evidence goes, claims nothing for himself except that he did not kill his wife. In the opinion by the writer on the former appeal of this case it was said: “There is no testimony tending to show the circumstances attending the killing, or to show that it was done in the heat of passion ; nor is there any evidence that the deceased came to her death as a result of a blow from the fist.”
I think Chief Justice Stone well understood the law of homicide, and he said (Mitchell v. State, 60 Ala. 26, 32): “Manslaughter is the unlawful killing of a human being without malice; that is, as the result of passion-heated blood, caused by a sudden, sufficient provocation. And such provocation can, in no case, be less than an assault, either actually committed, or menaced under such pending circumstances as reasonably to convince the mind that the accused had cause for believing and did believe he would be presently assaulted.” Taking this as a correct definition (and I presume no one will doubt its correctness), and applying it to the evidence in the case, why, may I not .ask, should the former opinion be modified, and the case sent back to be submitted oh another trial in respect to the law of manslaughter? The defendant does not say that his- wife assaulted him, that she was about to assault him, that he believed she was about to assault iiim, or even that he was acting under passion-heated blood. None of these excuses are resorted to by him. He simply says, “I didn’t do it.” But the court, in the opinion of the Chief Justice, say for him, in -effect, that while it is true the
As is intimated above, tbe court now modify tbe former opinion, taking, tbe ground that it was “a matter resting in inference, from tbe circumstances testified to, whether tbe inflicted violence was doné with tbe fist or with a weapon calculated to produce death”. In short tbe court bold that where a killing is shown, with no explanation given and no justifying circumstances in evidence, it must be left to tbe jury to determine tbe question of malice, unless the testimony shows that an instrument calculated to produce death was used; or, to put tbe concrete case, that tbe request by tbe defendant in regard to tbe law of manslaughter should have been given by tbe court, notwithstanding tbe killing was done, if done, in secret and without justifying cause. I do not so understand the law. The old rule, as laid down by text-writers and followed by courts of last resort in many of tbe states, was that “malice is presumed when an unlawful homicide is shown to have been committed and no circumstances in mitigation or justification appear.” Again that “every homicide is presumed unlawful, and when tbe mere act of killing is proved, and nothing more, the presumption is that it was intentional and malicious.” Kerr on Homicide, § 77; 1 East’s Crown Law, 340; Brown’s Case, 12 Minn. 538, 543 (Gil. 448); McLeod’s Case, 1 Hill (N. Y.) 436, 37 Am. Dec.
The rule has been slightly modified, and is thus accurately stated: “Where the killing is proved, and no more, the law will imply malice and make the act murder; but, when all the facts and circumstances of the killing are in evidence, then the jury must say from the evidence what was the intention with which the act was committed. Then it becomes a matter of proof — no longer implication.” — Alexander’s Case, 30 S. C. 74, 84, 8 S. E. 440, 14 Am. St. Rep. 879; Vollmer’s Case, 24 Neb. 838, 842, 40 N. W. 420; Harris’ Case, 8 Tex. App. 90. In Mackally’s Case, reported in 9 Coke, 67b, the law is stated as follows: “If one kills another without provocation, and without’ any malice prepense which can be proved, the law adjudges it murder, and implies malice; for by the law of God every one ought to be in love and charity with all men, and therefore, when he kills one without provocation, the law implies malice, and he may be indicted generally that he killed of malice prepense, for malice implied by law, given in evidence, is sufficient to maintain the general indictment.” Chief Justice Shaw, in York’s Case, supra, commenting on the law as above’quoted from Mackally’s Case, approvingly said: “This case appears clearly to hold the point that if the fact of killing is proved, and on this proof of the homicide no excuse or extenuation appears,
I submit, as a sound proposition, and one-supported by reason and authority, that the mere fact of a killing by violence carries with it the implication of malice, where no witnesses were present, and where the circumstances and mode of the killing are unknown and unproved (Clements’ Case, 50 Ala. 117; Head’s Case, 44 Miss. 731; Lamb’s Case, 41 N. Y. 360), and, further, that the implication obtains until rebutted by the accused with evidence showing excuse or justification. —Head’s Case, supra.
The question of corpus delicti is not embraced in this discussion, for the reason that there is evidence in the record to support the finding of the jury that the deceased came to her death from violence and that the violence was inflicted by the defendant. But the evidence does not disclose the circumstances under which the killing occurred. No witnesses were present. If the killing was done by the defendant, certainly the acts through which he accomplished the death of his wife were excessive and cruel. This cannot be doubted, from the very fact that death ensued. Therefore I am fully warranted in asserting that the case in hand falls squarely within the rule, in its modified form stated above, in respect to the implication of malice.
It is axiomatic that every one is presumed to understand the probable result of his act; and when an unlawful killing is shown and no explanation is offered, and no facts in connection therewith are shown, justi
Where, may I ask, is there to be found in this record a scintilla of evidence upon which such an inquiry could be rested? Certain it is the wife is dead, and, if her death resulted from violence inflicted by the defendant, her husband, certain again it is- no witness has been found to testify that he or she was present and saw or witnessed the circumstances of the killing. Therefore, what? Necessarily a case of murder in the second degree, because a killing in secret, without qualifying circumstances, must be regarded as having been voluntary and designed, and, therefore, effectuated in malice; the law imputing malice to such a homicide. Cases supra. See, also, Brown's Case, 4 Tex. App. 275; Farrer’s Case, 42 Tex. 265; Hadley's Case, 55 Ala. 31.
