Holmes v. State
88 Ala. 26
Ala.
1889
Check Treatment
McCLELLAN, J.

1. It was clearly competent to ask the witness Earley, on cross-examination, if he had not heard that the defendant “wore stripes” while working on the streets of Montgomery; the witness having testified, on his examination in chief, that he had never heard anything against the defendant. To say of one that he “ wore stripes,” the appellation commonly applied to the garb of a convict, necessarily implies a conviction of some infraction of the law, and is therefore derogatory to the person so referred to. In this instance, the testimony tended directly to contradict and weaken the negative evidence of good character given by the witness, and its admission was free from error.

2. The witness McHugh was incompetent to testify, either affirmatively or negatively, as to character. He knew nothing of the reputation borne by the prisoner in the neighborhood in which he lived, or where he was known; and he failed to show that he was in such a position with reference to the defendant’s residence, or circle of acquaintances, as that the fact of his not hearing any thing against him would have any tendency to show that nothing had been said, and that therefore his character was good. This witness swore, that “he thought the character of prisoner for peace and quiet was good;” but he further testified, that this was his personal opinion merely, based on what he himself knew from a personal acquaintance which had existed for about two years, during which time he had seen him frequently, “but their relations were not intimate, and he did not know where the defendant lived.” Very clearly this witness neither knew the reputation of the defendant affirmatively, nor was he in a position to have heard what was said *30in derogation of good character, in snch sort that his having heard nothing against the defendant could have shed any light on the inquiry. His evidence was properly excluded. Cheritree v. Roggen, 67 Barb. 124; Dave v. State, 22 Ala. 23; Mose v. The State, 36 Ala. 211; Martin v. Martin, 25 Ala. 201; Sorrelle v. Craig, 9 Ala. 334: Hadjo v. Gooden, 13 Ala. 718.

3. It appeared on the trial that the defendant, while seeking a difficulty with one King Woods, and endeavoring to get to him, was intercepted by the deceased, solely for the purpose of preventing a consummation of defendant’s design against Woods, and that in the scuffle incident to this interference the fatal shot was fired. The charge given at the instance of the State, and the first, second and third charges asked by the defendant and refused, related to the passion assumed to have been aroused by the interference, and the sufficiency of passion thus excited to reduce the homicide below the grade of murder. The principle laid down in Field's Case, 52 Ala. 348, and elaborated in the later cases of Judge v. State, 58 Ala. 406, and Mitchell v. The State, 60 Ala. 26, that “ an affray may occur, or sudden provocation be given which, if acted on in the heat of passion produced thereby, might mitigate homicide to manslaughter; yet, if the provocation, though sudden, be not of that character which would, in the mind of a just and reasonable man, stir resentment to violence endangering life, the killing would be murder,” applies here. The provocation shown by the evidence, and hypothesized in the charges referred to, was not sufficient to arouse passion, the existence of which would have reduced the homicide to manslaughter; and hence the action of the court, as well in giving the charge requested by the State, as in refusing those referred to above asked by the defendant, was free from error.

4. On the facts supposed in the defendant’s 4th charge, he could not have been guiltless. If, as there hypothesized, he was returning to Robinson’s store for the purpose of killing Woods, if it became necessary, thus endeavoring to put himself under a necessity, which it was his duty and within his power to avoid, he was engaged in an unlawful act; and if the deceased interfered to arrest this unlawful act, and in the scuffle incident to that interference, he was accidentally shot by the defendant and killed, manifestly this killing, while, abstractly considered, it was a misadventure. *31yet, when referred to the intent of the defendant towards Woods, and treated as a resultant of an effort to thwart that intent, was a crime; and on this ground the refusal of this charge may be justified. The charge was bad, moreover, because it was involved and argumentative, and naturally tended to mislead and confuse the jury.

The 5th charge requested by the defendant is unsupported in several of the facts upon which it proceeds, and was properly refused on this ground. — Jordan v. The State, 81 Ala. 20.

The judgment of the City Court is affirmed.