Goldsmith v. State, 105 Ala. 8

Goldsmith v. State

105 Ala. 8 | Ala. | 1894

COLEMAN, J.

The defendant was convicted of murder in the second degree, and sentenced to suffer imprisonment in the penitentiary. There was evidence tending to show that there was a quarrel between Emma Aarons and her son-in-law, Ed Knight, in which the defendant interfered, as claimed bv him and some of the witnesses, for the purpose of preventing a difficulty. There was evidence not uncontroverted that Emma Aarons then seized hold of him with one Hand and attempted to strike him with a stick, and at this time the deceased, General Evans, a son of Emma Aarons, approached the defendant with a stick and club in a threatening attitude, when he fired and killed deceased.

The defendant offered to prove that the general reputation of Emma Aarons for peace and quite was bad. The court sustained an objection to the introduction of this testimony, and this is assigned as error. The purpose of this evidence, as stated at the time by counsel for defendant, was to show that she was a woman “of turbulent and dangerous character, and that the defendant had greater reason to apprehend danger from her, and was justified in acting more promptly.” In other words, *12it is insisted that the dangerous character of Emma Aarons, if proven, would be competent evidence as tending to justify the defendant in promptly taking the life of deceased, who, for aught that appears in the record, was a man of peaceable character. But there is not the slightest tendency of evidence, including his own, to show that defendant acted under any apprehension of danger from Emma Aarons, in slaying the deceased, whatever may have been his apprehension of danger from him. We cannot extend the rule as here insisted for the appellant.

Charge No. 1. lays down a correct proposition of law; but the later decisions hold that such a charge gives undue prominence to the evidence of good character. Good character may generate such a doubt as to authorize an acquittal, where no such doubt would arise in the absence of such testimony, but evidence of good character should be considered and weighed with the other evidence in the case and should not be dissociated or considered independent of it; and a charge may be refused when it is calculated to draw the minds of the jury from the other facts in the case, which should be considered with the evidence of character in determining its effect on the question of guilt or innocence. The true doctrine is that declared in the text of the opinion in the case of Felix v. State, 18 Ala. 725 : “We are of opinion that evidence of the general character of the accused, having reference and analogy to the subject of the charge, is competent as original testimony — as a circumstance to be considered in determining whether he is guilty of the crime alleged against him — and may be considered, in connection with the other facts and circumstances, even to generate'a doubt in the minds of the jury. * * * * * We think the rule in such cases correctly laid down in 2 Russ, by Greaves, 786, and in Roscoe’s Or. Ev., (Ed. of 1846), 97, where it is said, ‘that the good character of the party accused, satisfactorily established by competent witnesses, is an ingredient, which ought always to be submitted to the consideration of the jury, together with the other facts and circumstances of the case. The.nature of the charge, and the evidence by which it is supported, will often render such ingredient of little or no avail; but the more correct course seems to be, not in any case to withdraw it from consideration, but to leave the jury to form *13their conclusion upon the whole of the evidence, whether an individual, whose character was previously unblemished, has or has not committed the particular crime for which he is called upon to answer.’ ”

What we have said applies also to charges numbered two and three. Charge No. 2 has been frequently condemned.—Williams v. State, 52 Ala. 411; Springfield v. The State. 96 Ala. 81; Pate v. State, 94 Ala. 14; Grant v. The State, 97 Ala. 36.

Charge No. 4 is a copy of a charge approved in Keith v. The State in 97 Ala. 33. This charge has been explained in the case of Goodwin v. The State, 102 Ala. 87; and should not be given except in cases where the evidence affirmatively shows that there was no duty upon the defendant to retreat, or when there was no reasonable mode of escape. The facts in the present case, so far from showing that the defendant could not have retreated in safety, tend to show that the contrary was true. There was evidence also tending to show that defendant was not free from fault in bringing on the difficulty. The following cases show that the charge was properly refused : Holmes v. The State, 100 Ala. 80; Webb v. The State, 100 Ala. 47.

The 5th and 6th charges ignore altogether the defendant’s duty to retreat, as well as the other evidence tending to show that he was at fault in bringing on the difficulty .

The 7th charge needs no further comment than to say that although the law requires that each juror must be legally convinced of the guilt of the defendant before there can be a conviction, the law does not require an acquittal of the defendant because one or more of the jurors may not be legally convinced of his guilt.

Affirmed.