69 Ala. 6 | Ala. | 1881
Two witnesses were present when the homicide charged in this case was perpetrated. Neither of them was looking towards the parties when the pistol was fired, and neither of them saw the act done. There is obscurity in the testimony relating to the conduct of the parties immediately preceding and attending the fatal act. Angry words were being interchanged, and the deceased spoke last. The ball entered at the back, which shows that deceased was not facing the accused when he received the fatal wound. The obscurity arises out of the following testimony: Immediately on hearing the report of the pistol, the witness testifies that she looked at the deceased, and he then had his arm extended, pistol in hand, pointing towards the door, — the place at which the accused had been last seen,-and from which the pistol was fired. -She saw the smoke of the pistol at the door, and heard some one spring out on the gallery. The ball entering at the back, if true, is unmistakable proof of the position the deceased occupied when he was shot. If the witness be believed, her eyes were thrown on him immediately after she heard the firing, and he had then faced around, and was pointing his pistol in the direction of the place where the accused must have been standing when he fired. This is a question for solution by the jury. It is their duty to reconcile the testimony if they can, and to'ascertain, if possible, what, if anything, deceased was doing when he was shot. If the circumstances are such" as to create the impression that deceased had drawn, or commenced to draw his pistol before the accused drew, or attempted to draw his pistol — or, if the circumstances generate a reasonable doubt whether such was not the case — tiren this should be considered in determining the grade of the homicide. It could not reduce it to self defense, unless deceased made the first hostile, dangerous demonstration, and the accused had no other reasonable mode of escape. — Judge v. The State, 58 Ala. 406.
There being ground for argument at least, that the deceased must have taken some action in the matter of drawing his pistol before the accused fired, this lets in the threat the witness testifies the deceased made, while loading his pistol shortly before the rencontre. If believed, it tended to show the animus of the deceased towards the accused, so recently before the homicide, as to authorize its consideration by the jury in ascertaining the conduct of the parties immediately before the firing. — Burns v. The State, 49 Ala. 370; Myers v. The State, 62 Ala. 599; Roberts v. The State, 68 Ala. 156. In ruling that this testimony should have been received, it is not our intention to intimate an opinion that the accused fired in self-defense.
The threat alleged to have been made by tbe deceased a week before the homicide, was properly excluded. — Payne v. The State, 60 Ala. 80.
Wlrat we have said above relates to the degree of the homicide. That offense under our statute is divided into four degrees, or classes; murder in the first and second degrees, aud manslaughter in the first and second degrees. These several offenses are fully defined in our former rulings. — Ex parte Nettles, 58 Ala. 268; Fields v. The State, 52 Ala. 848; Judge v. The State, 58 Ala. 406; Mitchell v. The State, 60 Ala. 26; McMamus v. The State, 36 Ala. 285; Cates v. The State, 50 Ala. 166; Grant v. The State, 62 Ala. 233. We are not’prepared to say there was any evidence tending to show the shooting was in self-defense, and. hence can not say the court erred in the instructions given and refused on that subject.
The judgment of the Circuit Court is reversed and the cause remanded. Let tbe prisoner remain in custody until discharged by due course of law.
