Martin v. State

47 Ala. 564 | Ala. | 1872

PETEES, J.

This is a prosecution by indictment for murder, found at ■ the fall term of the circuit court of Franklin county, in the year 1869.

The principal question in the case arises upon the charge of the court to the jury on the trial below. The correctness or incorrectness of this charge depends upon the evidence offered in the circuit court. It is now well settled, that the .charge, in such a case, must not only be a correct enunciation of the law governing the issue, but it must also be correct when applied to the whole evidence delivered on the trial. That is, the charge in any of its expositions of the law must not ignore any portion of the testimony, if it is a general charge. — Ogletree v. The State, 28 Ala. 693. This court places itself in the position of the court below at the trial. And where there is conflict in the evidence as there is here, it does not look to its force or its weakness on either side, or to its truth, or the want of it. These considerations are for the jury alone.

In this case there is some testimony tending to show that the accused had killed the deceased in a violent and angry rencounter between them, in which the accused used his pistol, and the deceased attempted to use his knife, in a fatal manner, but that the pistol was used in self-defense. Upon this evidence, the court below charged the jury, upon the motion of the prosecution, as follows:

“ If the jury believe, from the evidence, that the defendant killed the deceased by shooting him with a pistol, the law presumes it was done with malice, and the onus of shewing excuse, mitigation, or justification, rests on the defendant, and unless he has shown such mitigation, excuse or justification by the evidence, he is guilty as charged in the indictment.”

This charge divides itself into two propositions, not necessarily connected. The first proposition is, that a homicide effected by shooting with a pistol is, in law, to be presumed to have been done with malice, in any case whatever. The second proposition is, that, in a criminal prosecution, the onus of showing excuse, mitigation or justification rests upon the defendant. The latter proposition is true in all cases, whatever may be the state of the proofs, if there is any evidence showing guilt. — 3 Greenl. Ev. § 14. But the first proposition is only true where there is no excuse or justification shown, or where there is no evidence offered on the trial tending to show such excuse or justification. — Oliver v. The State, 17 Ala. 694. If, however, there is proof tending to show that the pistol was used in the necessary defense of the life or limb of the defendant, then this presumption of law is suspended. The use of the pistol or any other weapon in self-defense is not evidence of malióe; because there can be no malice in self-defense. — 17 Ala. 587, supra. A presumption of law is conclusive, if not rebutted by other evidence; and where there is any rebutting proof, the court ought so to charge as to recognize its effect. Here there was such evidence, and the court should have instructed the jury that the use of the pistol was a sufficient ground for a presumption of malice, unless it appeared from the evidence that it had not been used in self-defense. The charge would then have been free from error in both its propositions. — Stark. Ev. pp. 666, 667, 8th Amer. ed. by Sharswood, 1860. The qualification appended to the second proposition of the charge logically and naturally applies to that portion of the charge only. Its separation from the other shows that it was not intended to be referred to it, and without it the exposition contained in the first proposition of the instructions is not free from error, under the facts of this case. The impropriety, or, rather, doubtful fairness, of such a charge is strongly put by Catron, Chief-Justice of the Supreme Court of Tennessee, in the case of Coffee v. The State, (3 Yerg. 283, 287.) “Suppose,” says that distinguished jurist, — “suppose they (the jury) had returned a special verdict, and that they found the defendant slew the deceased as laid in the indictment; but of the fact, that he slew him with malice, they were not convinced; could the court lawfully have pronounced judgment of death upon this finding ? I think clearly not.” Yet this is the exposition of the law deducible from the instructions contained in the charge in this case. Besides the objection above urged, such a charge is obnoxious to the further impeachment of seeming unfairness, against- the effects of which the law intends most sedulously to guard the accused, in all prosecutions where life and limb are at stake and in peril. — Ex parte Chase, 43 Ala. 303; Hampton v. The State, 45 Ala. 82.

The judgment of the court below is reversed, and the cause is remanded for a new trial. And,, in the meantime, the appellant, said Edwin L. Martin, shall be held to answer the indictment 'in this case, until discharged by dire course of law. — Rev. Code, § 4316.