1. The general rule as to the relevancy of evidence is, that circumstances and facts which do not directly tend to the proof or disproof of the *161matter in issue are not admissible. If facts or circumstances which -are incapable of affording any reasonable presumption in regard to tlie material inquiry involved in the issue were admitted, trials would be protracted indefinitely ; and that which is of more importance, the attention of the triers of the facts would be diverted from the real issues, and the verdicts rendered could as well be imputed to the evidence which did not relate, as to that which did relate to these Issues. — State v. Wisdom, 8 Port. 511; Governor v. Campbell, 17 Ala. 566. It is apparent the evidence proposed to be introduced had no relation to the assault with which the defendant was charged, no connection with it, and could not afford any reasonable presumption or inference of his guilt or innocence ; and we can not doubt was properly excluded.
2. The observation of the court to the jury, in the course of the general charge, that "the existence and stability of good government in schools, largely depended upon authority, good order and discipline - being maintained by the school-master,” was the expression of a truism, suggested by the facts of the case, and the relation of the assailant and the assailed, at the time and place of the assault charged. We can perceive no just objection to it. There is in it no indication of an opinion as to the facts of the case ; no invasion of the province of the jury. It is often very necessary to. assist the jury in an application of the law to the facts of the case, that the court should state generally the rights, duties and relation of the parties ; and when this is done, without any indication of the opinion of the court as to the evidence, or as to the verdict which should be rendered, we can not conceive of injury resulting to either party.
3. The essential element of the statutory offense of an assault with the intent to murder, that which converts it into felony, is the intent to take life of the person assailed. Unless, if the intent had been consummated, the offense would have been murder in the one or the other of its degrees, there can be no conviction of the felony . When there is evidence of the assault upon the particular person named in the indictment, the determination of guilt or innocence of the felony, necessitates the inquiry, whether if death had ensued, the offense would have been murder; — 1 Wharton Crim. Law, (9th Ed.) , § 641; Lawrence v. State, 84 Ala. 424; Meredith v. *162State, 60 Ala. 441. There are cases in which a killing would be murder, and yet the intent to take tho life of the person slain would not exist. An example is given by Chilton, J., in Moore v. State, 18 Ala. 532: “As if one from a house top recklessly threw down a billet of wood upon the side walk, where persons are constantly passing, and it fell upon a person passing by and kills him, this would be, by the common law, murder ; but if instead of killing him, it inflicts only a slight injury, the party could not be convicted of an assault with intent to murder.” And a felonious attempt to kill one person, with malice aforethought, which results in the death of another, would be murder; while a wound inflicted on such other or third person, would not constitute the statutory offense of an assault with intent to murder. In these and similar cases, the inquiry is not involved, whether if death had ensued, the offense would have been murder in either of its degrees, and an instruction to the jury simliar to that which was given in this case would be erroneous. — Moorev. State, supra. But when the person assailed is the intended object and victim of the assault; when the inquiry is, whether there was the intent to murder him, the same rules obtain, and the same measure of proof is necessary, as in cases of murder, less the single fact, that to constitute murder, the wound must have proved fatal.
4. The evidence tends to show that at the time of the alleged assault, Moore, the person assailed, was the teacher of a school, of which the defendant, then between the ages of twelve and fourteen, was a pupil. The question was raised in the court below, whether the defendant was of sufficient mental development to be in law capable of committing the offense charged. Two instructions were requested, intended to raise the question, which are substantially the same, adapted to meet each phase of the case; the felony, and the misdemeanor involved in it. The instructions were, that if the defendant was under fourteen years of age, and had only average or ordinary mental capacity, he was entitled to an acquittal. The rule of the common law is, that an infant between the age of seven and fourteen years, is, prima facie, incapable of committing a felony. The presumption may be repelled by clear evidence of capacity, and the presumption decreases with the incz’ease of years, *163for, as is observed by Mr. Bishop: “There is a vast difference between a ehild a day under fourteen, and one a day over seven.” — Godfrey v. State, 31 Ala. 323; Martin v. State, 90 Ala. 602. To an infant between the ages of seven and fourteen, the maxim, Malitia supplet setatvm— malice supplies the want of age — applies. Malice is here used in its legal sense, and means the doing of a wrongful act intentionally, without just cause or excuse. —Broom’s Legal Maxims, (8th Ed.), 316. The inquiry is, not whether the accused is of the average capacity of infants of his years, or above or below it. That he is the one or the other is doubtless a fact which the j ury ought to consider in determining whether he had the knowledge and discretion requisite to legal accountability. It is the strength of the understanding and judgment of the delinquent, which is in issue, and which the jury are to consider. The presumption of immunity proceeds, we suppose, on the theory that the infant is of the average capacity of one of his years, and the inquiry for the jury is, whether it is clearly shown that in the particular transaction, intelligently, he intended the doing of a wrongful act. If this be clearly shown, the presumption is repelled and legal accountability attaches. The instructions requested on this subject were properly refused.
5. At the instance of the State, the court instructed the jury, that “to make out a case of justifiable self-defense, the evidence must show that the defendant did not provoke or encourage the difficulty.” As we interpret this instruction, it asserts that to make the plea of self-defense available, there must be affirmative proof that the defendant “did not provoke or encourage the difficulty.” A corollary would.be, that if there was no evidence as to who provoked the difficulty, the plea of self-defense ,is not available. The burden of proving that the defendant was the aggressor, or that he provoked or encouraged the difficulty, rests upon the State; and if in reference to the fact theré be no testimony, or if the testimony be not sufficient to satisfy the jury beyond a reasonable doubt, then the plea of self-defense, if otherwise made good, is not affected by the absence of this rebutting proof. — McDaniel v. State, 76 Ala. 1; Cleveland v. State, 86 Ala. 1; Wilkins v. State, 98 Ala. 1. There was error in the giving of this instruction.
Reversed and remanded.
AI-generated responses must be verified and are not legal advice.
