Hill v. State
69 So. 941
Ala.
1915
Check Treatment
THOMAS, J. —

Aрpellant was convicted of murder in the first degree, and sentenced to the penitentiary for life.

(1-3) On the trial many questions were sought to be raised on the admission of evidence. To the testimony of witnesses Ed., Elsie, and T. H. Hatfield, and D. D. Depositor, the defendant did not object before answer. After answer, motion made to exclude cannot put the court in error for admitting testimony responsive to the question. — Pope v. State, 168 Ala. 33, 53 South. 292; Downey v. State, 115 Ala. 108, 22 South. 479; Rutledge v. Rowland, 161 Ala. 114, 49 South. 461; *17Kramer v. Compton, 166 Ala. 216, 221, 52 South. 351; Sharp v. State, 193 Ala. 22, 69 South. 133. If objection had been seasonably made to the questions before answer, in this case, the condition of the body of deceased was properly shown to the jury, on the questions, identity of the deceased, length of time the body had been concealed, and how it had been concealed, as shedding light on the corpus delicti. — Sharp v. State, supra, At the time of the introduction of this testimony, the defendant had made no confession that he had killed the deceased, and its subsequent admission could not put the court in error.

(4) The remark of the solicitor in the hearing of the court and the jury that, “It is a horrible thing to relate, I know,” was promptly repudiated by the court as “an improper remark;” the court adding that “the jury will not consider it.” It is to be regretted that one clothed with the power of prosecution for the state should make improper remarks before the jury, yet the prompt and decisive reproof, in this case, by the court, followed up by the exclusion of the offensive remark from the jury, was sufficient to render harmless the statement complained of.

(5) The acts, declarations, and conduct of the accused, against interest, are always competent. At the coroner’s inquest,., before defendant was arrested, his conduct with reference to the investigation as well as his selection of the coroner’s jury was a circumstance, against interest, properly' admitted for the consideration of the jury. There was no-error in permitting witnesses Deposited and Hatfield to testify as to what defendant did in selecting the coroner’s jury. — 7 Mayf. Dig. 312; Maddox v. State, 159 Ala. 53, 48 South. 689; Miller’s Case, 107 Ala. 40, 19 South. 37; 4 Enc. Dig. of *18Ala. Rep. p. 184, § 258; Blount’s Case, 49 Ala. 381; McManus’ Case, 36 Ala. 292; Reeves v. State, 96 Ala. 33, 11 South. 296; Pate v. State, 94 Ala. 14, 10 South. 665; Henry v. State, 79 Ala. 42; Armour’s Case, 63 Ala. 173; Johnson v. State, 17 Ala. 623.

(6) The witness Mrs. Tidwell, the wife of the deceased, had testified to the conduct of the defendant shortly after she heard the two shots fired on the mountain, in the direction of the still, and of his coming from that direction and going to his home; and on cross-examination the witness stated she never said anything аbout this conduct of the defendant for there was nobody else there to talk to, whereupon the defendant asked the question, “Nobody else?” and the witness answered, “I seen Mr. Hill’s wife, I would walk up and down the road and sing.” The defendant made no motion to exclude this statement of the witness, but asked the question, “When was it she would sing?”' Witness answered: “During the time Mr. Hill was missing from home. I would walk up and dоwn the road and cry and take on, and she would walk up and down the road and sing.” Then the defendant asked the witness the question, “Don’t you know Mrs. Hill was expecting to be confined at that time?” to which the witness replied, “She was in no worse shape than I was, if she was.” Here the solicitor objected, and moved the court to' exclude this evidence, and the court sustained the motiоn. There was no error of the trial court in sustaining the solicitor’s objection and excluding this testimony. The answer of Mrs. Tidwell touching her conduct, and that of Mrs. Hill after the murder, would have been excluded on motion of the defendant. Defendant’s failing to do' this did not give him the right to proceed with a cross-examination introducing irrelevant testimony.

*19(7) The defendant, as a witness in his own behalf, was properly not permitted to testify that he came to Attalla “intending to give up.” Likewise the court properly refused to permit the defendant to testify that he and his mother were bothered, and that she advised him to leave home; or to permit the witness to testify that he did not want to leave home, or that he told other parties about it soon after the killing. All of this testimony tеnded to make evidence for the defendant.

The rules governing the introduction of testimony in criminal cases forbid the introduction in evidence of self-serving declarations and acts of the defendant, and the principle is sustained by a long line of authorities in this state. — Oliver v. State, 17 Ala. 595, to Hill v. State, 156 Ala. 3, 46 South. 864; Williams v. State, 105 Ala. 96, 17 South. 86. The declarations sought to be introduced did not come within the rule of Goforth’s Case, 183 Ala. 66, 63 South. 8.

(8) The facts that the defendant had been “аccused of selling liquor,” and “that three indictments were pending against the defendant for running a still or selling ‍‌​​​​​‌‌‌​‌‌​​‌​‌‌‌‌‌‌‌‌​​‌‌​‌​​‌‌‌‌​‌​​​‌‌​​‌​​‍liquor,” were immaterial inquiries on his trial for murder. The court committed no error in sustaining objections to questions seeking to show these facts.

(9) The witness E. V. Hall testified for the defendant that he was at defendant’s house on the day of the murder; that when defendant came he was bloody and dirty and had a gash across his head about an inch- and a half or two inches long. It would have been improper for the court to permit the defendant to ask the questions, “What was he doing, was. he crying or not, how about it?” and, “What did he, the defendant, do when 'he came to the house?” The witness had described the physical appearance of the defendant, the condition of *20his clothing, and the nature and character of the wound across his head when he returned to his home after the homicide.

(10) There was no error in the refusal of the court, on motion of the solicitor, to permit witness Ramsey to give his reasons why his attention was attracted to the two shots. Witness had testified that he heard two shots; this was sufficient.

(11-13) When a witness has testified tо the general reputation or character of the defendant, it is competent on cross-examination to test witness’ knowledge of this reputation or character of which he did testify, by asking if he had not heard of specific acts of the defendant. that tended to militate against his reputation or character.

(14) Jim Sibert having testified as a witness for the defendant, the court properly permitted the state to impeach him as to truth and veracity. — 1 Mayf. Dig. 890.

(15) The predicate being laid for the impeаchment of the witness Hill, it was permissible to allow Cleve Hawkins to testify that, at the time and place indicated in the predicate, he had a conversation with the defendant, in which the defendant told witness that he killed the deceased below the still and dragged him 30 yards away, or words in substance to this effect. In response to the defendant’s motion to exclude, the court inquirеd of the-witness, “Did he say that, or about’that in substance?” and upon the witness’ reply, “Yes, sir,” the court overruled the defendant’s motion to exclude the answer of the witness.

In Southern Ry. Co. v. Williams, 113 Ala. 622, 21 South. 328, it was declared that the rule is not ironclad; that it does not require perfect precision as to either time, place, persons present, or the statement made. The predicate is sufficient, whеn it is clear that *22the witness is not taken by surprise, and is afforded ample opportunity to make any explanation desired, and is sufficient to authorize proof of contradictory statements. — 2 ‍‌​​​​​‌‌‌​‌‌​​‌​‌‌‌‌‌‌‌‌​​‌‌​‌​​‌‌‌‌​‌​​​‌‌​​‌​​‍Brick. Dig. 548. A proper predicate being laid for the introduction of the testimony, there was no error of the trial court in overruling defendant’s objection and motion to exclude. — Burton v. State, 115 Ala. 1, 22 South. 585; Southern Ry. Co. v. Williams, supra; 1 Greenl. Ev. § 462.

(16) There wаs no error in the ruling of the court, on the solicitor’s objection to defendant’s questions to the witness Vann. The witness was introduced by the defendant in rebuttal, and after he gave the rebuttal testimony counsel for the defendant asked, “Did you state to Hill that he had better watch Tidwell, or something of that kind?” The court sustained the solicitor’s objection to the question and declined to аllow counsel for the defendant to make such proof. The testimony was not in rebuttal, and was no more than the advice of the witness to the defendant. The court, however, allowed the witness to state that he told the defendant that the deceased was a dangerous and bloodthirsty man.

(17) The vice of refused charge B is that it sought to instruct the jury that the contradictory statements on the part of the defendant were admissible only to determine the weight to be given defendant’s testimony. The charge was misleading in that the statements them-.selves, which are said to be contradictory, may carry evidential weight with the jury as to¡ the facts disclosed by them.

(18-21) The court properly refused charges A, C, and I, requested by the defendant, for that the duty to retreat was ignored by these charges. It was a question *23for the jury, under all the circumstances, to determine whether or not the defendant could retreat without increasing his peril. — Miller v. State, 107 Ala. 40, 19 South. 37; Abernathy v. State, 129 Ala. 85, 29 South. 844; Suell v. Derricott et al., 161 Ala. 268, 49 South. 895, 23 L. R. A. (N. S.) 986, 18 Ann. Cas. 636; Carter v. State, 82 Ala. 13, 2 South. 766; Evans v. State, 109 Ala. 11, 19 South. 535. Charge C pretermits a reasonable or bona fide belief by the defendant that his life was in danger. The apprehesion of danger must be bona fide and reasonable. — Beasley v. State, 181 Ala. 28, 61 South. 259. The defendant has- proceeded on the idea thаt there was no- duty of retreat by him, because the homicide occurred at the illicit distillery on the moutain, set up and maintained by the defendant and the deceased. Such a place of unlawful business will not be held to be a place of business from which those engaged are not required to retreat. The case-relied on by appellant (Stevens v. State, 138 Ala. 71, 35 South. 122) is not authority to the contrary.

In the case of People v. Rector, 19 Wend. (N. Y.) 569, 591, where the defеndant kept a bawdyhouse in the city of Albany, the question of the right of defense to one’s castle was considered; and Mr. Justice Cowan said that it was proper to observe that, after the prisoner had given notice to the deceased and his companions to depart, his house was,. in respect to them, a mere private one; and that in the eye of the law it was entitled to the same measure of protection as the house in Meade’s Case; and that any further assault, therefore, or any apprehended assault, might be repelled upon the same principles controlling in that case. — Meades Case, Lewin’s Crown Cases, 184. Meade’s Case is recited at large in Roscoe’s Criminal Evidence, 644, *24645 (Phil’a Ed.) 1836), s. c. (18 Ed.) pp. 805, 806. Meade was in his dwelling, at the nighttime, repelling a hostile attack by a band of smugglers and boatmen to whom he had become оbnoxious for giving information on them to excise officials.

Mr. Wharton (Homicide [2d Ed.] § 547), discussing the defense of dwellings, says: “In 1873 the doctrine of Meade’s Case was affirmed, it being expressly declared that the use of deadly weapons is ‍‌​​​​​‌‌‌​‌‌​​‌​‌‌‌‌‌‌‌‌​​‌‌​‌​​‌‌‌‌​‌​​​‌‌​​‌​​‍admissible to divert apparently felonious assault on defendant or his household.. — State v. Patterson, 45 Vt. 308 [12 Am. Rep. 200].”

The Vermont case thus cited by Mr. Wharton was where the defendant was living with his wife, mother, and sisters in a tenement house.

In Pond v. People, 8 Mich. 167, Mr. Justice Campbell, for the court, says: “A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house,- or to prevent his forcible entry, even to the taking of life. But here, as in the other cases, he must not take life if he can other wise arrest or repel the assailant. — 2 Bish. Cr. L., § 569.; 3 Greenl. Ev. 117; Hawk. P. C., B. 1, c. 28, § 23. Where the assault or breaking is felonious, the homicide becomes justifiable, and not merely excusable.”

In Storey v. State, 71 Ala. 337, Mr. Justice Somerville cites the authorities above referred t,o, as supporting the statement that: “Where one is attacked in his own dwelling house, he is never required to retreat. His house is his castle and the law allows him to protect its sanctity frоm every unlawful invasion.”

In Jones v. State, 76 Ala. 8, 16, the killing was in defendant’s barroom, of which the deceased had charge *25or in which he had an interest at the time of the killing; and it was declared an admitted doctrine of our criminal jurisprudence that, when a man is attacked in his own house, he is not required to retreat further. The reason of the rule is said to be that the law regards a man’s house, as his castlе, or, as was anciently said, his tutissimum refugium, and, having retired thus far, he is not compelled to yield further to his assailing antagonist. — Brinkley’s Case, 89 Ala. 34, 3 South. 22, 18 Am. St. Rep. 87; Hutcheson v. State, 170 Ala. 29, 54 South. 119.

The question was again considered in Suell v. Derricott et al., 161 Ala. 259, 273, 49 South. 895, 23 L. R. A. (N. S.) 986, 18 Ann. Cas. 636, where Mr. Justice Mayfield restated the rule as being that a man’s house is his castle for purposes of defense only; and, as- has been said by this court, it cannot be turned into an arsenal of offense. While one’s house formerly meant his home, his dwelling, the rule has also been еxtended to one’s place of business or his place of refuge; consequently a man’s place of business must be regarded pro hac vice his dwelling. He- has the same right to defend it against intrusion, and is under no- more necessity of retreating from the one than from the other; his duty to defend one is the same as it is to defend the other.

In Watts v. State, 177 Ala. 24, 32, 59 South. 270, 273, the doctrine of retreat in one’s dwеlling was again stated: “Had the evidence showed that defendant went, into this room and was there attacked by his wife, the case might be different, and it may be that a due regard for the sacredness of human life would require a qualification of the principle announced in Jones v. State, and Hutcheson v. State, supra, to the extent that *26those occupying separate rooms under a common roof should he held to the duty of retreating each to his own quarters, * * * rather than to stand there and kill, if such retreat might reasonably avoid the necessity of killing and offer safety to the one assailed.”

The evidence showed that the husband and wife had taken separate rooms of the same house as dwelling-places.

In Walsch v. Call, 32 Wis. 159, 161, the court was construing a statute of exemption of the stock “in trade or business”’ аnd the expression was held not to embrace the stock in trade for carrying on the business of selling intoxicating liquors contrary to law. In the Walsch Case the familiar principle was applied that the credit sales for an unlawful business cannot be collected by law ‍‌​​​​​‌‌‌​‌‌​​‌​‌‌‌‌‌‌‌‌​​‌‌​‌​​‌‌‌‌​‌​​​‌‌​​‌​​‍for the reason that the law will not permit its machinery to be used in aid of an outlawed business. —Melchoir v. McCarty, 31 Wis. 252, 11 Am. Rep. 605. If the person so engaged in an unlawful business would not be protected in his illegal credit sales, it will not be held that if, while operating or conducting this unlawful business, he is attacked (this illegal business place not being his dwelling house), he has the same right to stand and defend that he would have in his dwelling house or house used in the conduct of a lawful business. The unlawful business house or place, and its keeper or maintainer, are for the time not protected by the special right of defense of the castle.

By reason of the rule in each case, of defense of the castle or place of business, the right to stand and defend against unlawful invasion must be held to attach to a place that at the time is a .dwelling house or house where, the owner conducts a lawful trade or business. The fundamental principle of all the cases on this subject is the right of “the castle,” and the rule is not ex*27tended to the protection or defense of a house where the then occupant has no legal right to be. Thus, such unlawful occupant has no higher, or more special, right of defense than that extended to him in a public thoroughfare or in his wood or field.

(22) Refusеd charge D was embraced in given charges 14, 18, 19, and 25. The law requires retreat if it is reasonably apparent that it can be done without increasing the danger. The charges seek to erroneously declare the rule of retreat to bet inability to retreat with safety.

(23, 24) Charges E, F, and H, requested by the defendant, were misleading. The refusal of charge H may be further justified on the usе of the word “or” instead of “of,” as rendering the charge meaningless or likely to be misunderstood by the jury. — Todd’s Case, 13 Ala. App. 301, 69 South. 325.

(25) Charge J was properly refused, as being argumentative, and as stating no proposition of law on which the defendant had the right to request the court to instruct the jury.

The defendant had the benefit of a proper instruction in given charge 5, which charged that the fact that defendant was engaged in the operation of a still should not be considered by the jury for any purpose in ascertaining his guilt or innocence.

(26, 27) There was no error in the refusal of charge G. It predicates the right of the defendant to kill the deceased on freedom from fault, and on defendant’s honest belief that his life was in danger, or that he was in danger of grievous bodily harm. This is an incorrect statement of the rule. A man has not the right to take life on the ground alone that he honestly believes his life is in danger, or on the ground that he was free from fault in provoking the difficulty. Either fact may *28be true, yet the circumstances may be such that it is the duty of the assailed to retreat, and within his power to do so without increasing his peril. The circumstances at the time оf the homicide must not only be such as to induce the reasonable belief, or belief in the mind of a reasonable man, that there is imminent peril to life or limb and that retreat cannot be resorted to without increasing the peril, but must actually induce this reasonable belief in the mind of the slayer.

The court has several times stated the conditions of apparent necessity which will excuse, under the doctrine of self-defense, in homicide cases; and these are: (1) That the defendant must have entertained an honest or bona fide belief in the, existence of necessity; and (2) the circumstances surrounding him, at the moment of the fatal shot or the delivery of the blow that caused the death of the deceased, must have been such as to impress a reasonable man, under the same circumstances, with the belief of his imminent peril and of the existence of an urgent necessity to take the life of his assailant as the only apparent alternative of saving his own life, or himself from grievous bodily harm. —Jones v. State, 76 Ala. 17; Storey v. State, 71 Ala. 329; Matthews v. State, 192 Ala. 1, 68 South. 334; Carroll v. State, 12 Ala. App. 69, 68 South. 530. Refused charge G fails to state the rule, and, moreover, singles out and gives undue prominence to a part of the evidence. It was ‍‌​​​​​‌‌‌​‌‌​​‌​‌‌‌‌‌‌‌‌​​‌‌​‌​​‌‌‌‌​‌​​​‌‌​​‌​​‍properly refused. The defendant, however, in given charges 19 and 26, had the benefit of the instruction sought in charge G.

The judgment is affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.