Jones v. State

Dec 15, 1884

Versions:76 Ala. 8

SOMERVILLE, J.

— Thе threat made by the defendant . against some one not-designated or identified by him — in which he declared, in general terms, “ Damn him, I am going to kill *15him” — was clearly admissible in evidence, under the authority of Ford. v. The. State, 71 Ala. 385, 396. This threat was made but a few hours before the killing of the deceased by defendant, and after the parties hаd engaged in a previous altercation on the same day. It was a matter of mere inference for the jury, whether the threat had referenсe to the deceased or to some other person.

It was competent to prove that the sheriff, Ferrell, had engaged in an altercation with Doles, the deceased, a short time prior to the killing, for the purpose of impeaching Ferrell’s testimony, he being a witness in the cause for the defendant. The order of the introduction of this evidence was immaterial. The fact ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of such difficulty could be shown, and the gravity of its nature, or the contrary ; but its merits, or details, could not be proved, nor any particulars tending to show who was in fault. The purpose is to prove such a bad statе of feeling towards the deceased, as would tend to bias the testimony of the witness. McAnally v. The State, 74 Ala. 9. It is a common mode of discrediting a witness for the prosecutiоn, to ask him, on cross-examination, whether he has not expressed feelings of animosity or revenge towards the prisoner; and so, of a witness for the prisoner, whether he has not previously evinced a feeling of partiality or friendliness for him. —1 Greenl. Ev. (14th Ed.) §§ 450, note h ; 2 Best Ev. § 644. There is no reason why the fact indiсating such bias may not -be as wTell proved in any other legal way, because it is the fact, and not its mode of proof, which goes to the root оf the witness’ credibility. Whart. Cr. Ev. §§ 485, 477 ; 1 Whart. Ev. 544, 561. The State should have confined the testimony of the witness Starke to the fact and time of Ferrell’s altercation with the deсeased, arid the language of denunciation used which indicated the nature of his animosity, and disclosed the strength and degree of his prejudices in thе main transaction under process of judicial investigation.

While evidence is always admissible to show, generally, whether the character of а person is good or bad — when the question of character is properly put in issue — it is not competent to establish one’s reputation or сharacter by introducing evidence of particular acts, or of specified conduct on his part. The testimony must be confined to reputаtion, which has been justly said to be “ the only mode in which character can be exhibited to us.” — Whart. Or. Ev. 259-60; 1 Greenl. Ev. § 55. This rule does not conflict with the principle settled in DeArman v. The State, 71 Ala. 352, where it was held that a witness, who had testified on direct examination to the general good character of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a defendant, could, on cross-examination, be asked whether he had not heard of certain enumerated acts of *16defendant which tended to show that his character was not good.

It is an admitted doctrine of our criminal jurisprudence, that when a person 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 castle, or, as was anciently said, Yústutissimumrefugium, and having retired thus far, he is not comрelled to yield further to his assailing antagonist. — 1 Hale’s P. C. 486 ; Storey v. The State, 71 Ala. 385 ; Carroll v. The State, 23 Ala. 28 ; State v. Patterson, 12 Amer. Rep. 212, note ; State v. Harman, 78 N. C. 515. When he has reached this refuge, he may stand at bay, and “ may turn on and kill his assailant, if this be apparently necessary to save his own life; nor is he bound to escape from his house, in order to' avoid his assailant.” An assailed person, as said by Mr. Wharton, “ is not bouud to retreat out of his house to avoid violenсe, even though a retreat may be safely made.” — Wha.rt. on Homicide, § 541. This is admitted to be the settled rule, as between one who is the exclusive owner of the house, and an aggressor who has no light of entrance ; but its application is denied, as between joint owners or possessors, or tenants in common with equal rights of possession. We have found no authority for this distinction, and we can not perceive any solid basis of reason by which it cаn be supported. Why, it may be inquired, should one retreat from his own house, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍when assailed by a partner or co-tenant, any more than when assailed by а stranger who is lawfully upon the premises ? Whither shall he flee, and how far, and when may he be permitted to return ? Tie has a lawful right to be and remain there, аnd the legal nature and value of this right is not abrogated by its enjoyment in connection with another. The law only exacts of each that he shall enjoy his property and possession so as not to injure the other. It is our opinion that the doctrine of retreat, or of declining combat by retreаt, lias no application to cases of this character, and that the right of self-defense may be perfect without it, where one partner or co-tenant is assailed by another, each being equally entitled to possession of the house or premises where the attack is made.

Nor, in our judgment, is there any doubt about the fact that a man’s place of business must be regarded, pro hao vice, his dwelling ; that he has the same right to defend it against'intrusion, that'hе has to defend his dwelling; and that he is no more under the necessity of retreating from the one than the other when he is unlawfully or feloniously assailed, being lаwfully in its occupancy. — Morgan v. Durfee, 69 Misso. 469.

The first and second charges requested by the defendant *17should, in view of this principle, have been given, and their refusal was error.

The fourth charge requested by the defendant was erroneous, in assuming that the taking of the money by the deceased was a provocation sufficient to extenuate the killing to. manslaughter. The deceased had the interеst of a partner in the bar-room and its proceeds, — certainly of a tenant in common,— being in possession, and with equal rights ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as against the defendаnt. He committed no larceny, or even trespass, in taking the money ; and even had this been the case, there would have been no provocation adequate to reduce the homicide from murder to manslaughter, provided the other facts of the case were sufficient to cоnstitute the act of killing murder on the part of the prisoner. — Storey's Case, supra; 1 Bish. Cr. L. (7th Ed.) §§ 849, et seq. ; Clark’s Man. Cr. L. §§ 435, et seq.

The apparent necessity which will excuse the taking of human life under the doctrine of self-defense, in cases of homicide, involves two considerations : 1st, the defendant himself must have entertained an honest belief in the existence of such necessity; and, 2d, the circumstances surroundinghim must have been such as to impress a reasonable man, under the same state of facts, 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 else of preventing the infliction of grievous bodily harm. — Storey v. The State, 71 Ala. 337, and cases cited ; Whart. on Hom. §§ 517-520. The third charge requested by the defendant was properly refusеd, because if entirely ignored all consideration of the defendant’s honest belief in the existence of a necessity which excused the cоmmission of the alleged homicide. — Allen v. The State, 60 Ala. 19.

We see no error in the refusal of the last charge requested by defendant, and numbered five. It was abstract, being entirely unsupрorted by the evidence, and otherwise objectionable.

For the error of the court in refusing to give the first and second charges requested, thе judgment of conviction is reversed, and the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍cause remanded for a new trial. In the meanwhile, the defendant will he retained in custody, until discharged by due course of law.