Kirby v. State

89 Ala. 63 | Ala. | 1889

McCLELLAN, J.

“Affinity properly means the tie which arises from marriage betwixt the husband and the blood relatives of the wife, and between the wife and the blood relatives of the husband. But there is no affinity between the blood relatives of the husband and the blood relatives of the wife.” The juror Bryant, being a cousin of the step-father of the deceased, was related by affinity to the mother of deceased, but bore no relation to deceased himself, and was a competent juror. — Paddock v. Wells, 2 Barb. Ch. (N. Y.) 333; Salinger v. Earle, 45 N. Y., S. C. 80.

The proposed testimony of the witness Tisdale, as to what Morgan and deceased told him with reference to the scene of the difficulty, and to the effect that Morgan “got behind a stooping post-oak tree,” was mere hearsay, and properly excluded on that ground.

There was no error in excluding the declarations of the deceased, offered to be proved by the witness A. M. Jones. If it be conceded that, as to deceased’s declaration that, “if he lived, the defendant should not be harmed for what he had done, if he could help it; that if he died, he did not want the defendant harmed; that if a man had come to him in the same way, he would have shot him — he did no more than any other man would have done,” a sufficient showing was made that deceased was, at the time, under a sense of impending death; yet all of these declarations were offered together; some at least, if not all of them, did not relate to the identity of the criminal, or the facts and circumstances of the killing, within the limits of this class of evidence (Sylvester v. State, 71 Ala. 17), and all of them were, therefore, properly excluded.—Warren v. Wagner, 75 Ala. 188.

With respect to the evidence of this witness, that deceased told him “it was behind a stooping post-oak at the fork of the road that Morgan got,” no predicate, as for the admission of dying declarations, was attempted to be laid; and without this, as we have seen, the statement of deceased was hearsay only, and inadmissible.

Defendant and another stopped for the night by the roadside, with their wagons and teams. Deceased and Morgan, later in the night, travelled along the road, and, when they reached defendant’s camp, began cursing and abusing the parties in the camp, for having left one of their wagons partly in the beaten track of the road-way, so that deceased and Morgan were forced to drive to one side, out of the regularly travelled way, but still within the road, in order to pass. This was the inception of the difficulty. There was a conflict in the testimony, as to whether the wagon was really left in the road. The defendant himself testified, that it was not so left; and his evidence in this regard was corroborated by other witnesses. One or more witnesses for the State testified to the contrary. The fact itself was pertinent. It was confessedly competent for the State, on cross-examination, to ask the defendant whether he had said, at a certain time and place, that the difficulty occurred because the wagon of deceased and Morgan ran against his, the defendant’s wagon. This being denied, it was, we think, competent for the prosecution to show that this statement had been made, in substance, in the presence and hearing of defendant, and was allowed to go unchallenged by him; the fact being of a nature to impute fault to defendant with respect to the origin of the difficulty, and naturally calling for a denial from him, if it did not exist. The defendant being first asked whether such statement had been made in his presence and hearing, and having denied that it was so made, the further evidence adduced by the State in this connection, that such statement had been made in a conversation in which defendant participated, and hence presumably in his hearing, and had not been denied by him, was competent, on the ground that it was contradictory of defendant’s testimony, and also on the ground that his silence, under the circumstances, was an implied admission of the truth of the statement, which tended to impute fault to him in respect to the origin of the difficulty.—Campbell v. State, 55 Ala. 80; McAdory v. State, 62 Ala. 154; Garrett v. State, 76 Ala. 18; Williams v. State, 81 Ala. 1.

The general charge of the court was delivered in writing, and is set out in the bill of exceptions. It is recited that the “defendant excepted to each sentence of said charge, separately and severally,” and that “the defendant also excepted separately and severally to each paragraph of said charge.” As has been many times ruled by this court, these were mere general exceptions to the entire charge, and will not avail the appellant, unless every sentence, or every paragraph, as the ease may be, of the charge, involves an erroneous'statement of the law.—Goley v. State, 87 Ala. 57; Dick v. State, Ib. 61; Adams v. State, Ib. 89; McGehee v. State, 52 Ala. 224; Black v. Pratt C. & C. Co., 85 Ala. 511; 3 Brick. Dig. 80; Bedwell v. Bedwell, 77 Ala. 587; Stevenson v. Moody, 83 Ala. 418.

Separate and distinct exceptions were reserved to paragraphs 13, 16 and 17 of the court’s general charge, and they will be considered. Paragraph 13 embodies a correct statement of the proposition, that if a man kill another by intentionally shooting him with a gun, the slayer is guilty of murder, unless the evidence shows a justifying reason for doing the act, or that it was done under circumstances which mitigate its criminality, and reduce the offense to a lower grade of homicide.—Kennedy v. State, 85 Ala. 326; Ex parte Brown, 63 Ala. 187.

Paragraph 16 is a sound exposition of the doctrine-, that a defendant who seeks to avoid the punitive consequences of killing another, on the ground of self defense, must have been free from fault in proyoking or bringing on the fatal difficulty, in which the necessity to take life arose, since he can not shield himself behind a necessity which his own fault or wrong has contributed to produce.—Storey v. State, 71 Ala. 329; Cleveland v. State, 86 Ala. 1; Brown v. State, 83 Ala. 33; Baker v. State, 81 Ala. 38; Parker v. State, 88 Ala. 6; Lewis v. State, 88 Ala. 11.

The altercation which preceded the fatal shot was initiated by deceased and Morgan cursing and abusing the two men in the camp. The threats of chastisement and prosecution were directed against both the defendant and his companion, Coon. The challenge of deceased and Morgan, looldng to a combat half-way between their wagon and the camp, rtas addressed both to the defendant and Coon. Throughout the altercation, Coon, for himself and the defendant, replied to the curses and abuse of the other parties in kind, dared them to the execution of their threats then and there, and accepted their challenge or invitation to meet and fight on middle ground. One phase of the evidence tends to show, that .the defendant himself did not reply to the taunts, threats and challenges of the other party, made both to him and Coon. But there is no evidence that he dissented from anything Coon said or did in behalf of both of them, provoking and bringing on the trouble; nor did he in any way discourage or discountenance the action or language of Coon, nominally and really in their joint behalf, in inviting and inciting deceased and Morgan to the execution of their threats; but, on the contrary, the evidence shows, that however much or little defendant participated in the wrangle of words, he stood ready, armed with a Winchester rifle, to take the lives of the advancing parties, should they, or either of them, come as far as a certain point, where the moon was shining brightly, on the invitation and challenge of himself and companion, as made by the latter. Paragraph 17 of the charge is based on, and supported by evidence which tends to establish the foregoing outline as to defendant’s participation in the altercation which brought on the fatal result. Under the facts, if believed to be true, which are thus supported by a tendency of the evidence, there can be no doubt of defendant’s participation in, and responsibility for, whatever fault was his companion’s in bringing on the difficulty. And his responsibility therefor, as also the bearing his fault in that respect had on the asserted right of self-defense, are correctly and clearly stated in the paragraph of the general charge under consideration.

The third charge requested by the prosecution should not have been given. It confines the right to kill to those cases in which the defendant has a reasonable belief that it was necessary to kill in order “to save his own life.” This is not the law. There may in fact be no danger to life, real or reasonably apparent; yet, if there is imminent danger, or a reasonable apprehension of such danger, to limb, or involving great bodily harm, the right to strike,in self-defense accrues, and the assailant may be killed with impunity, if the party assaulted was not in fault. There was evidence on the trial which tended to show, or from which the jury might have inferred, that, while it was not necessary to the preservation of his own life for defendant to kill Pitman, yet defendant was in such imminent peril of great bodily harm, short of the destruction of life, as rendered Pitman’s death a necessity, furnishing justification for the fatal shot. The charge had the effect to deny to defendant this justification, and the court erred in giving it.

The charges requested by defendant and refused, are all faulty. The first is a mere argument, neither the giving or refusal of which involves error. The second tended to mislead the jury into the conclusion, that inasmuch as it was not incumbent on defendant to retreat from his wagon, he would be justified in standing his ground there and killing his assailant, although he had wrongfully brought on the difficulty in which the necessity to kill arose. The court had properly stated the doctrine of retreat, and held that it did not apply in this case; and its refusal of this request is fully justified on the ground of its misleading tendency in the particular referred to.

Charges 3, 4, 5 and 6 were each properly refused, because they pretermitted all inquiry as to the fault of the defendant, and authorized his acquittal, without regard to whether or not the necessity under which he fired the fatal shot was superinduced by his own wrong.—Fallin v. State, 83 Ala. 5; Williams v. State, Ib. 16.

The judgment of the Circuit Court is reversed, and the cause remanded.