Gilliam v. State, 50 Ala. 145

Gilliam v. State

50 Ala. 145 | Ala. | 1874

B. F. SAFFOLD, J.

Instructions asked, like evidence offered, must be relevant to the issue. If not proper under the evidence, although enunciating the law correctly, they should be refused as abstract. Charges are abstract, when they assert propositions of law not legitimately arising out of the testimony itself, or the inferences deducible therefrom. Want of a foundation in fact for any one of several connected propositions of law will suffice to reject an instruction prayed for, although the *147remainder of its propositions of law are clearly and correctly stated, and based on uncontroverted proof. But a charge is never abstract, when there is evidence in the case sufficient, if believed by the jury, to afford a field for the operation of the principles of law enunciated in the instructions asked. It is the province of the jury to determine what credit they will give to witnesses, especially where there is conflict of testimony. However unworthy a witness may be, or however incredible the court may deem his statements, it cannot withdraw such testimony from the jury, either directly, by excluding it, or indirectly, by refusing to guide the jury by a statement of the principles of law growing out of such evidence, in case the jury did believe it.

Tested by these principles, the charges asked by the appellant were not abstract, and the court erred in refusing them, Testimony was delivered tending to show that the deceased, armed with a navy repeating pistol, fastened around his waist, and plainly visible, and attended by his brother, went to the house of the slayer; his character was marked with desperation ; he commenced the conversation which led to the killing; a few minutes before the rencounter, he felt on a bed, and looked behind a door, in appellant’s house, in presence of his daughter, as if in search of something stolen; he called to appellant to come out, and on being asked by the latter why he treated his family so, he replied, “ Damn you, go to shooting,” at the same time handling his pistol.

Whether or not the appellant acted prudently or properly in taking his pistol and going out of the house, under the circumstances disclosed in the bill of exceptions, is not decisive of his plea of self-defence. The jury, if they believed the testimony introduced by the defence, might have found that his conduct, in doing so, was free from design to harm the deceased, and was precautionary only in an interview forced upon him, on his own premises, by a desperate man, who had just insulted his family. If, in addition, they believed, as the same evidence tended to show, he made the inquiry, and received the answer in language and action, above detailed, a verdict of not guilty might have been rendered. The refusal of the charges may have impressed the jury with the belief that the defendant, in going out armed, forfeited any excuse for the killing, which the threatening attitude of the deceased would otherwise have given him.

The judgment is reversed, and the cause remanded.