| Ala. | Dec 15, 1878
The credibility of evidence, legal and pertinent to the issue, is clearly a question for the jury. True, the court may and should lay down rules for weighing testimony in proper cases. It can go no farther. "When testimony tends to elucidate any material matter of contestation in the trial, is not too remote, and is not introduced for the purpose of supplying an analogy in argument, it must be received, and its weight considered by the jury. Neither the Circuit Court nor this court can pronounce such testimony worthless or unavailing. The evidence in the present record tends to show the prisoner and the deceased had quarreled the day before, and threats were made. "When they met the following morning, if the statement of the first witness for the State be correct, the prisoner made the first offensive remarks which brought on the rencontre, made the first overture to fight then and there, and, by his movements, made the first hostile demonstration. If this be so, and if the accused advanced on the deceased in a threatening manner, the deceased could strike in anticipation, provided he did not employ unreasonable force in repelling the impending assault; and such blow would be self-defense, although the first stricken. If the positive testimony, or circumstances, show with the requisite certainty that defendant was advancing on deceased, or menacing him with present danger, having, in either event, a drawn knife or other deadly weapon; or, being in the act of drawing such deadly weapon, then, a blow by the deceased, although the first struck, to save himself from such impending peril, would not constitute him the aggressor, but would stand justified under the law of self-defense. And if these be the facts, then such first blow struck by the deceased, if not greatly disproportioned to the peril, would neither excuse nor mitigate the fatal wound inflicted by the prisoner. A man may not bring on or provoke a difficulty, and then justify the use of deadly weapons, under the plea of self-defense. — Lewis v. The State, 51 Ala. 1" court="Ala." date_filed="1874-06-15" href="https://app.midpage.ai/document/lewis-v-state-6508764?utm_source=webapp" opinion_id="6508764">51 Ala. 1; Eiland v. The State, 52 Ala. 322" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/eiland-v-state-6509017?utm_source=webapp" opinion_id="6509017">52 Ala. 322 ; Clarke’s Manual Cr. Law, sections 377-8. On this theory of the case, the previous state of feeling between the parties, and any threats that may have been made prior to that time by the slain, should exert no influence on the jury, unless there was a present impending purpose on his part, real or apparent, to put such threats into immediate execution. — Clarke’s Manual, sections 384-6, 392.
There is an absence of proof in the present record of the exact attitude of the parties at the onset of the rencontre. Whether the accused was advancing with a weapon drawn, or in the act of being drawn, what was the attitude of the deceased at that time, these are questions upon which there
In the late cases of Mitchell v. The State, 58 Ala. 417, and Ex parte Nettles, 58 Ala. 268" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/ex-parte-nettles-6509787?utm_source=webapp" opinion_id="6509787">58 Ala. 268, we discussed the doctrine of murder under our statutes so fully, that we consider it unnecessary .to comment on the charge of the court in this case. It fairly presents the true doctrine of murder, as raised by the testimony, and that was enough for the present case. Charges asked and refused will scarcely arise again in their present form, and we will not consider them. The Circuit Court did not err in receiving evidence of threats previously made by the accused.' — Evans v. The State, ante, p.. 6.
Eeversed and remanded. The prisoner will remain in custody until discharged by due course of law.