78 Ala. 5 | Ala. | 1884
The judgment of conviction in this cause must be reversed, for at least two errors in the exclusion of evidence offered during the progress of the cause by the defendant.
In the first place, we are of opinion that the statement of the witness Allen was relevant, to the effect that a day or two before the difficulty, in which the deceased was killed, Allen had pointed the defendant out to the deceased on the public street, and told deceased that defendant was the man with whom witness had had a difficulty a few nights previous. There was some evidence tending to show a conspiracy between the deceased and Allen on the one hand, and the defendant and one McCall on the other, to participate in, if not bring on a difficulty with each other. The deceased, Anthony, was a stranger to defendant, being unacquainted with him; and if he had any motive for injuring him, it seems from the evidence
It was clearly incompetent for the witness Melissa Stewart to testify as to the supposed intention of Allen when he stopped the defendant a few nights before the difficulty. She could not know that he did so “with the intention of provoking a difficulty wfith him,” as she stated, because no such intention was at the time communicated. This was a matter for the jury to determine, and not for the inference or opinion of witnesses.— Burke v. The State, 71 Ala. 377; Brewer v. Watson, Ib. 299; Whizenant v. The State, Ib. 383; McCormick v. Joseph, 77 Ala. 236. This portion of the witness’ testimony was properly excluded by the court.
But the statement of the same witness, that she had sent a message to McCall, requesting him to come out of the church and walk home with her — which is alleged to have occurred just previous to the affray in question — should have been allowed to go to the jury as relevant. There was evidence tending to show7 that defendant had been overheard to say to McCall, if he would call some one, not named, out of the church, he, defendant, would shoot him down. One of the witnesses also testified that McCall w'eut back into the church very soon and requested deceased to come out. The jury may have inferred that McCall’s exit from the church was in pursuance of this deliberate plan of a conspiracy to murder. The statement of the witness Melissa Stewart, that she had sent for him for the purpose mentioned, was competent to rebut this, if it is believed by the jury to have been done in good faith, and without collusion between her and the defendant or McCall.
The remarks of the court, to which objection was taken, seem to have been directed to counsel, rather than to the jury. They announce no incorrect principle of law, however, and do not appear to us to have invaded the province either of the counsel, or of the jury. — Meinaka v. The State, 55 Ala. 47; Campbell’s case, Ib. 80. The law does not look upon the principles of our criminal jurisprudence, recognizing the duty of retreat under certain circumstances in order to avoid unnecessary bloodshed, as “ a cowardly doctrine ” — which were the terms in which it was characterized by the extract read by the counsel to the jury. The presiding judge did right to correct this dangerous misapprehension, lest it might mislead the jury, to the dishonor of the law. Courts have a discretionary power,
The charge given by the court, at the request of the solicitor, was unquestionally correct.— Wills v. The State, 73 Ala. 362; and cases cited in brief of the Attorney-General.
It was competent for the defendant, in making his statement under the statute, to the jury, to testify that he had had a previous difficulty' with Allen, and to state the general nature of it, so as to show whether it was grave or trivial in character. Ilut the details or particulars should not have been stated. McAnally v. The State, 71 Ala. 9; Gray v. The State, 63 Ala. 66.
For the errors above specified, the judgment of the City Court is reversed, and the cause remanded. The defendant will, in the meanwhile, be retained in custody, until discharged by due course of law,