Kennedy v. State

85 Ala. 326 | Ala. | 1888

SOMEBYILLE, J.

The defendant is indicted for shooting and killing one Perry with a pistol, while travelling on a train of cars between Mobile and Montgomery. He claimed that the deceased had used insulting words towards him, and had assaulted him, inflicting a slight wound on his neck. The witness Elliott, upon the defendant’s complaining that his throat hurt him just after the killing, made examination of the place in the night time, using for this purpose a lantern. He was asked by the solicitor, what he was accustomed “to use the lantern for”; to which he replied, that he used it “for all purposes — to see in the dark, to examine tickets, and money, &c.”, he being the conductor on the train. This question and answer were objected to by defendant, and overruled by the court. In this, we think, there was no error. The uses to which the lamp was ordinarily put, tended to show the uses to which it was adapted, and in this manner explained the capacity or candle-power of the light. If it was suitable to examine money and tickets in the dark, the jury might well infer that it was equally suitable for the examination of the alleged injury on the defendant’s neck, which was the use to which the witness had put it, and in reference to the results of which he was undergoing examination.

This witness is shown not to have been present at the time of the shooting, he being then in another coach. Upon receiving information as to the difficulty, he went into the car where it had occurred. How many minutes this was after the killing, the bill of exceptions fails to disclose. In view of this state of the evidence, the court properly sustained an objection by the State to the question proposed to the defendant, “ What did he say f The answer of the defendant, conceding that it would have reference to the homicide, is not shown to be so closely connected with the main transaction — the act of shooting — as to constitute a part of the res gestxe. We can not know from the record that it would not have been narrative merely of a by-gone transaction. To authorize the admission of such evidence, it must be shown to be “contemporaneous” with the main transaction, in the sense in which we have heretofore explained this term, and upon which we need dwell at no length at this time. — Ala. Gr. So. R. R. Co. v. Hawk, 72 Ala. 112; s. c., 47 Amer. Rep. 403; Dismukes v. State, 83 Ala. 287; Burns v. State, 49 Ala. 370. The same objection applies to the other questions seeking to elicit from the witness Elliott any declarations made by the defendant subsequent to the killing, and relevant to it.

The testimony of the witness McOarron, taken before the magistrate on the preliminary investigation of the facts attending the killing, having been reduced to writing, the court did not err in refusing to allow liim to be cross-examined as to garbled extracts taken from the writing, with a view of contradicting or impeaching him. The court properly required that the entire writing should be shown, or read to the witness, and go to the jury.— Wills v. The State, 74 Ala. 21; Gunter's case, 83 Ala. 96. Nor was the charge of the court to the jury erroneous, that the paper should not be treated as original evidence of the facts of the case, nor be received for any other purpose than that of contradicting or impeaching the witness. — Jones v. Pelham, 84 Ala. 208. The paper was entire and not severable, and it was impracticable to admit a part of it to go to the jury. The practice in such cases is to admit the entire paper, and limit its effect as evidence by a proper charge to the jury, as was done by the Circuit Court on the trial in this case. Wills v. State, 74 Ala. 21, supra.

Exception is taken to the charge of the court touching the dying declarations of the deceased, as to the circumstances of the homicide. This charge was, that these declarations were to be considered by the jury, “just as though deceased had been sworn and put on the stand, and testified as a witness to the words used in his dying declaration.” This charge is liable, as we readily see, to a construction which would render it erroneous; but it is equally capable of being so construed as to make it announce a correct proposition of law. It does not necessarily instruct the jury as to the degree of weight to be given such declarations ; nor does it ignore the principle, that such evidence is to be received with caution, and weighed with care, in view of the fact that the accused had been deprived of the power of cross-examination; or that the circumstances of the killing may have been attended by confusion and surprise, calculated to prevent close observation; or that the passions of anger and revenge may have biased the accuracy of the statements; or other like considerations, which tend to lessen the weight of this kind of evidence. The charge was especially intended to have relation to the element of weakness often urged against dying declarations, by reason of the fact that the witness was not under oath at the time of the statement. The rule on this subject is thus stated by Mr. G-reenleaf: “The persons whose declarations are thus admitted, are considered as standing in the same situation as if they were sworn; the danger of impending death being equivalent to the sanction of an oath.” — L Greenl. Ev. §157. And again: “A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice.” — § 156. The same proposition is asserted in Sylvester v. State, 71 Ala. 18. If the charge in question was ambiguous, so as to be susceptible of the interpretation sought to be placed on it by appellant’s counsel, this misleading tendency could have been corrected by an explanatory charge, had it been requested by the accused. It can not, for this reason, operate to reverse the judgment.

There is no error in the charge given by the court, to the effect that if the accused, when he saw the deceased on the train, “on purpose, and without any circumstances of mitigation or justification, pulled out his pistol, and shot deceased, this would be a willful and deliberate murder.” A. pistol is a deadly weapon, from the use of which malice may be implied; and a killing with a deadly weapon, without more, is presumptively murder. If there were no circumstances of justification or excuse, the killing could not have been in self-defense. If there were no mitigating or extenuating circumstances, it could not be reduced to manslaughter, nor could it have been lawful.

It is earnestly urged that the Circuit Court erred in refusing to give severally the five charges requested by the defendant, the legal effect of each of which, if given, would have been to reduce the killing from murder to manslaughter. Upon a close scrutiny of these charges, we are satisfied that their tendency was to mislead the jury. The theory upon which they are based is, that the killing of deceased by the accused was reduced to the grade of manslaughter in the first degree, because prompted by sudden heat of passion, excited by recent and reasonable provocation, such as rebut the existence of malice, or formed design in the act of killing. The evidence tended to. show three importent facts, touching this inquiry: (1.) That the insulting words used by deceased to defendant, had been uttered a considerable time before the killing — an interval allowing the defendant to get up and go to another coach in the train, arm himself with a pistol, and return. This may have been a sufficient interval for “cooling time” in the passions of the accused excited by the insult. (2.) One phase of the evidence tended to show, that the deceased made no assault whatever on the accused— that he spoke to him merely without putting his hands on him, or threatening to do so. If this be true, the provocation could not have been adequate to reduce the killing to manslaughter (3.) There was evidence tending to prove that the accused armed himself, and by his own conduct brought on the difficulty, by putting himself in the way of being attacked by Perry, the deceased. Each one of these charges is defective in ignoring one or more of these phases of the evidence, and in excluding its consideTation from the jury as a qualifying factor in determining the nature or character of the homicide. If the defendant had time to cool under the smart of tbe alleged insulting words, they could not be considered in connection with any subsequent act of assault on him by the accused; and standing alone, they could not reduce the homicide to manslaughter. So, if there was no assault and battery by the deceased on the accused, either perpetrated or threatened, the provocation could not be adequate to rebut the malice presumed from an inexcusable killing with a deadly weapon. And if the killing was executed pursuant to a. previously formed design, which necessarily implies malice, it could not be imputed to spring from that sudden heat of passion which dethrones the reason. An examination of these charges shows that, in view of these principles, each of them was more or less misleading, and that they all were properly refused. — Stewart v. The State, 78 Ala. 436; Smith v. State, 83 Ala. 26; Williams v. State, Ib. 16; Fallin v. State, Ib. 5; Clark’s Man. Crim. Law, §§ 419-422.

We discover no error in any of the rulings of the Circuit Court, and the judgment must be affirmed.