Henson v. State, 114 Ala. 25

Henson v. State

114 Ala. 25 | Ala. | 1896

McCLELLAN, J. —

The defendant was not indicted for murder, but for manslaughter, the charge being that he “unlawfully and intentionally, but without malice, killed Dan Hall by shooting him with a pistol.” Section 3727 of the Code, which declares that “when' the *28killing in any sudden rencounter or affray is caused by the assailant by the use of a deadly weapon, which was concealed before the commencement of the fight, his adversary having no deadly weapon drawn, such killing is murder in the second degree, and may, according to the circumstances, be murder in the first degree,” has, therefore, no bearing on this case. Manslaughter in the first degree may be included in the statutory murder denounced by that section, yet it would be of no advantage to the prosecution under an indictment for manslaughter to prove murder under this statute, since in so doing not only the concealment of the deadly weapon with which the killing was done would have to be proved, but also every fact essential to manslaughter in the first degree ; and the evidence of such essentials could neither be aided by proof of the concealment, nor impaired in its force and legal effect by the absence of such proof. We are unable to conceive, therefore, that the evidence admitted below against defendant’s objection to the effect that the pistol with which the killing was done was concealed about his person up to the time he drew it on the deceased, could have exerted any influence in the case, except the wholly illegitimate one of aggravating the punishment of the offense charged, by a consideration of the offense of carrying a concealed weapon, of-which the defendant may have been also guilty, but for which he was not indicted. The killing, if not done in self-defense, was unlawful whether the weapon had previously been concealed or not; and the fact of concealment has no relevancy to the inquiry as to self-defense. So, too, as to the intent: No question is made or arises in the case upon the intention of the defendant: all the evidence shows that he intentionally shot the deceased. And if it did not, if there was conflict or room for diverse inference on this point, it is inconceivable that evidence of the concealment of the pistol about the person coufd shed any light on the inquiry. That the defendant was armed with a deadly weapon before and at the commencement of the altercation may tend to show a deadly intent at the moment of using the weapon, but it is impossible to see that such tendency would be at all strengthened by the fact that he had it concealed about his person. The circuit court erred in allowing evidence that the pistol was concealed to go to *29the jury: it was irrelevant and impertinent, and should have been excluded.

We are also unable to see the pertinency of the fact that of the three women present at the time of the killing — which occurred at a dance in the house of one Molly Burns — “that long, tall, slim one, named Josie” was the defendant’s partner ; the said Josie’s personality not being otherwise injected into or identified with the case.

The charge requested by the defendant correctly asserts that the burden of proof as to fault in bringing on the difficulty is not on the defendant; but its tendency clearly was to mislead the jury to the conclusion that if there was a reasonable doubt as to who was at fault in bringing on the difficulty, they should acquit, when the jury might have found that no predicate for an inquiry as to where the fault lay had been made by evidence of defendant’s mox-tal or grievous peril and inability to safely retreat. The court did not err in refusing the charge.

Reversed and remanded.