Mitchell v. State, 133 Ala. 65

133 Ala. 65 | Ala. | 1901

DOWDELL, J.

On the trial, the defendant introduced evidence tending to show that deceased was a man of violent, bloodthirsty character. The State in rebuttal, introduced a witness, who was asked if he knew the general character of the deceased, who answered, that “he was a good, fair average man.” To the question and answer, the defendant objected, because illegal and irrelevant, which objection was overruled. The objection raised in argument is, that the evidence offered is not in rebuttal. It is true [the original evidence was as to violent, bloodthirsty character. 'These traits have some bearing On general character, and it is clear the State had the right to ¡rebut such evidence by showing the deceased’s reputation for peace and quiet. It would seem that proof that “he was a good, fair average man,” would have some tendency in that direction, and to that end, was not wholly illegal and irrelevant. Moreover, it was open to the defendant, to require the witness to explain what he meant by the expression used, if it was supposed it did not tend to show character for peace and quiet. — Hussey v. State, 87 Ala. 122; Eiland v. State, 52 Ala. 323.

The defendant was convicted of manslaughter' in the first degree, on indictment charging him with murder. Charges from 1 (to 7, inclusive, requested by defendant and refused, had reference to murder, and do not, therefore, require consideration. — Evans v. State, 109 Ala. 11; Winter v. State, 123 Ala. 1; Fallon v. State, 83 Ala. 5.

Charge 8 requested by the defendant was argumentative and calculated to mislead. There was no error in its refusal. The same charge in substance was condemned on the former appeal. — Mitchell v. State, 129 Ala. 23.

Charge 9 is not insisted on, for the reason as counsel state, it “finds substantial duplication in given charge No. 36.”

■ Charge 10. That the children of deceased were competent witnesses for the State, and that they testified under whatever influence their relation to him inspired, was in nowise disputed. That the jury had the legal right to believe or disbelieve them, as they would any other witnesses in the case, nobody denied. The only effect of the instruction was to draw the attention of the jury to the relationship of the witnesses to the deceased, as a matter calculated to throw discredit on their evidence. The charge was a mere argument, which possibly might have been given, but its refusal was equally without error. — Horn v. State, 102 Ala. 155.

Charges 12 and 13, as there was some evidence tending to show a conspiracy between the defendant and his sons, were properly refused.

Charges 14, 14-J and 15, in view of the evidence tending to show that defendant was the aggressor, were each bad, if for no other reason, because they ignore any reference to fault on defendant’s part in commencing the difficulty. Similar charges were, for the same reasoil, condemned on the former appeal. — Mitchell v. State, 129 Ala. 23. It may be added, that charge 15 was given substantially in charges 38, 40 and 45.

Charge 16 is faulty. It does not hypothesize the belief of defendant, that he was in imminent peril, nor does it fully and clearly state the doctrine of imminency of peril, and of escape therefrom. — Evans v. State, 109 Ala. 12; Wilkins v. State, 98 Ala. 1; Howard v. State, 100 Ala. 94; Jackson v. State, 78 Ala. 47.

Charge 17, as applicable ito this case, assumes that the “slayer is- -[was] free from fault in bringing -on the difficulty,” and this is sufficient to- condemn it.' Moreover, it inculcates the repudiated doctrine, that if a defendant is in a position of advantage over his adversary, who is-about ¡to assault him, he may hold his position, even to the point of 'slaying his adversary, and make no effort, to retreait, although his -danger is not increased thereby. — 1 Mayfield Dig., 804¿ §§ 55, 57.

Charge 18 wa-s rightly refused. It hypothesizes two different -moments of time, on which ¡the instructions are based; 1st, when Thompson was crossing the road and •running towards his house fleeing from Mitchell to a place -of safety; and the 2d, the moment wlien defendant shot'Thompson. As to the first period of time, ¡the instruction is -asked, that if Mitchell believed the facts hypothesized, “he had a right to act in the light of ¡this reasonable belief,” — [to clo what is not. stated, and up to this time, no duty of retreat is put upon 'him by the charge, but it continues after a comma], — “and if Mitchell was without fault in bringing on the difficulty, and if at the moment he shot [having stood his ground meantime, while Thompson was running for Ms gun], the appearances were such as to create in Ms mind, a reasonable belief that he was in -danger, etc. * * * ■and if there was not .reasonably -apparent to defendant, circumstances as he then was [at the moment he -shot], a means whereby he could escape without increasing his danger, then the defendant would not be guilty,” etc. The charge i-s thus, open to the construction, that it seeks to impose no duty of retreat on deféndant, from the danger appearing -at the first period of time mentioued, when Thompson was fleeing toward® his house, and not to impose such duty on him, till afterwards, at the moment when he shot, whereas, he was under this duty, at all times from the inception of the difficulty. If not positively erroneous, it is confusing and calculated to mislead.

Charge 19 is not insisted pn in argument, and without reference to- that fact, was properly refused. It is confused and argumentative.

Those numbered 20 and 21 were also properly refused. If given, their only tendency would -have been to mislead. Non constat, the facts hypothesized,, the jury, under all the. facts of the case, may have believed that defendant was the aggressor and precipitated the difficulty. ...

Affirmed.