McKee v. State

82 Ala. 32 | Ala. | 1886

STONE, C. J.

— 1. Before entering upon the trial in this case, it was objected by the defendant, that the record failed to show that the indictment had been returned to the court by, and in the presence of the grand jury. — Code of 1876, § 4821. On this account it was contended in the court below, and the contention is renewed here, that what is claimed as an indictment, is wanting in evidence to prove its authenticity as a record. There is indorsed'upon it,’“ a true bill, Benjamin Newton, foreman of grand jury and the record shows that Benjamin Newton was the duly appointed foreman of the grand jury, by which it purports to have been found. It also contains the indorsement, “ Piled in open court on the 28th day of May, 1880, R. Seale, Cl’k.” This was the term at which the indictment is shown to have been found. The Circuit Court did not err in holding the indictment sufficient. — Moses v. State, 35 Ala. 421; Gross v. State, 63 Ala. 40; Brooks’ Case, 9 Ala. 9.

2. Nor did the court err in refusing to quash the venire of the special jury. — Floyd v. State, 55 Ala. 61; Hubbard v. State, 72 Ala. 164; Jackson v. State, 76 Ala. 26; 3 Brick. Dig. 264, § 168.

3. The opinion of the witnesses, based on the appearance of the wound, that tbe blow was inflicted from the front, and not from the rear, was properly excluded. The wound was susceptible of description ; and it was properly left to the jury to determine from what direction the blow came.— Walker v. State, 58 Ala. 393; Bennett v. State, 52 Ala. 370.

4. The court, charging the jury as to the weight and sufficiency of the evidence to justify a conviction, used this language : “ If the jury, after a careful consideration and examination of all the evidence in the case, still have an abiding conviction, to a moral certainty, that the defendant is guilty, this is sufficient to authorize them to find him guilty.” There was no error in this charge. - Coleman v. State, 59 Ala. 52; Mose v. State, 36 Ala. 211.

5. Many of the charges asked by defendant, and refused, ignored entirely the duty resting on all, even when in peril, of retreating, or withdrawing from the conflict, if practicable, when the same can be done without increasing the peril, or rendering less available the means of defense.— Eiland v. State, 52 Ala. 322; Brown v. State, 74 Ala. 478; Cross v. State, 63 Ala. 40; De Arman v. State, 71 Ala. 351; Wills v. State, 73 Ala. 362. Charges 4, 8, 9,10, 11, 17, 22, and 4d, were rightly refused, on this principle.— Tesney v. State, 77 Ala. 33.

Charge 2b is very faulty, as it appears in the transcript. If, instead of the words it employs — “ manslaughter in any degree” — it had said murder in the first degree, the charge would have been correct. — Mitchell v. State, 60 Ala. 26.

Charges 3c, 8h, 9i, are abstract and misleading, and were rightly refused on that account.

6. Charge 13m was calculated to mislead. To the average mind it would import that, as matter of law, the jury were bound to give to the testimony of defendant as much weight as they would give to that of any other witness. While it is manifestly true, that the jury should never disregard the testimony of any witness capriciously, the weight and influence oral proof shall have in their deliberations is exclusively for them. The law has neither declared, nor can it declare, any standard for weighing such testimony. — Ex parte Warwick, 73 Ala. 57.

7. Charge 21, asked by defendant, is in the following language : “If the jury believe, from the evidence, that the blow was stricken with a stick picked up on the spur of the moment, without previous selection or preparation, then, they should not presume that the blow was stricken with malice, from the use of the stick alone.” All the testimony agrees, that the stick employed was a hand-spike; an instrument used in carrying, collecting, and rolling logs for burning. It is not disputed that, from its size, it was an instrument likely to produce death. It will be observed, that this charge was asked as an isolated, independent proposition, without any reference to what may have preceded, or brought it about. “ Spur of the moment, without previous selection or preparation,” is the category or condition hypothesized. Suppose two strangers were to meet, without previous acquaintance, and, of course, without malice from one to the other, and one of them, finding a hand-spike in his reach, should seize it, and with it slay the other. This would be “ without previous selection or preparation.” Would there be no presumption of malice from the use of a weapon so deadly ? — Hadley v. State, 55 Ala. 31; Ex parte Brown, 65 Ala. 446. Bear in mind, the charge asked is silent as to any act or word of the deceased, done or spoken,' before the blow was struck. If deceased had used insulting language to the accused, no matter how gross, this would not repel the imputation of malice, nor reduce the homicide to manslaughter. — Judge v. State, 58 Ala. 406; Grant v. State, 62 Ala. 233; Nutt v. State, 63 Ala. 180. Will it be contended, when nothing is said or done, that the homicide is reduced to manslaughter, if done on the “ spur of the moment?” This charge was rightly refused.

8. Charge 25 is erroneous as a legal proposition. Aside from the presumption that every one is held accountable for the natural and probable consequences of his acts intentionally done (McManus v. State, 36 Ala. 285), many murders are committed without actual intention to kill. Deaths, even when not thought of, ensuing from an attempt to maim, or from an attempt to commit any other felony, are examples of this kind of murder.

The judgment of the Circuit Court is affirmed.