62 Ala. 237 | Ala. | 1878
The appellant was indicted under section 4109, Code of 1876, for carrying a pistol concealed about his person. — See section 4809 and form 21. The defense was that the accused had been threatened with, or had just cause to apprehend an attack. The rulings of the court, in rejecting evidence offered in support of this defense, present the questions for our decision. The Circuit Court did not err in excluding evidence of the cause and details of the quarrel and difficulty alleged to have taken place about a week before the alleged offense between the defendant and the witness David Jones, Jr. That evidence was offered for the purpose of showing the feelings entertained by the witness towards the accused ; this, on the question of impartiality or credibility of the testimony given by this witness. It is competent to prove enmity or unfriendliness of a witness to a party against whom he testifies, as one method of asssailing or weakening the evidence. It does not set the testimony aside. It is received, that the'jury may consider it, with the other evidence, in determining what weight they will accord to the testimony thus given by one at enmity with the accused. But, the proveable fact, is the state of the witness’ feelings, not the cause of it. That would probably lead to a multiplication of issues, and confusion of the minds of the jurors. This testimony was properly excluded.
Enmity, or ill feeling between parties, is a fact to which a witness may testify, if he knows it. It is generally made manifest by the demeanor and conversation of the parties ; and third persons, observant of, and familiar with their intercourse, and the state of their feelings, as shown by their
The Circuit Court erred in excluding evidence of the alleged previous threat made by Joe, son of David Jones. Its tendency was, if believed, to prove that the defendant had been threatened with an attack, and thus to make out the defense relied on. If the answer had furnished what the question sought to elicit, it would have shown, if believed, that about one week before the accused was seen to conceal a pistol about his person, Joe had attempted to shoot him with a gun ; and on being prevented, had threatened defendant that he would shoot him, whenever he caught him out. This would clearly constitute a threat; and, unless something in the manner of its utterance sho-wed it was not intended to be executed ; or, unless Joe’s after conduct made it manifest that passion had subsided, and, with it, the purpose to carry the threat into execution, the jury would be justified in finding the defendant stood excused for carrying the pistol concealed about his person. Tbe real transaction, the real purpose, or what seemed to be the real purpose of the person making the threat or hostile demonstration, and the real, not feigned sense of insecurity or peril under which the threatened party labored when he carried the concealed weapon, are questions for inquiry by the jury. A recent threat should weigh much more with the jury, than one of older date. So, if after a threat made in anger, the parties become reconciled, or, being together, tbe threat is neither executed, nor attempted to be executed, when, if the intention still existed, it could be carried into effect, then, it could not be predicated that the accused had been threatened with, or had good reason to apprehend an attack in the meaning of the law. The excuse rests on the idea of self-defense, not aggression. Still tbe threat may be given in evidence, but it should weigh nothing with the jury, if under the rules given above, it is shown to be a mere pretext, rather than the true reason for carrying tbe concealed weapon. It is not every idle threat that will excuse tbe carrying a weapon concealed about the person ; nor will a threat, long made, and not attempted to be executed, when it might have been, furnish such excuse. Precautionary defense against impending peril, is what the statute intended to authorize. We think what we have stated above is, in substance, the import of the language employed in Baker v. The State, 49 Ala. 350. Being threatened with an attack, or impending threat, implies only
Reversed and remanded. The prisoner will remain in custody until discharged by due course of law.
