90 Ala. 624 | Ala. | 1891
It was objected in the court lielow, that a copy of the indictment, and “ a list of the jurors summoned for his trial,” were not served on the defendant, or on counsel appearing for him, one entire day before the day set for his trial. — Code of 1886, § 4449. This objection was urged as a reason why the defendant should not then be put upon his trial. The objection was overruled, and the defendant excepted.
It will be observed that the statute referred to was very materially changed by the adoption of the Code of 1886. See Code of 1876, § 4872. Hence the rulings on the former statute are not strictly applicable to this. Whether the defendant is in custody, or out on bail, the service may now be made on counsel. And it is not material that such counsel has been
The bill of exceptions states it contains the substance of the testimony. It contains not a word or intimation of wrong, or even insult, given by the deceased to the accused. The only pretense of excuse was, that about an hour before the fatal shot was fired, deceased stabbed and killed one Copeland, who was cousin to Reese, the defendant. But deceased had been .arrested, and was in custody, with his hands tied behind him. In this condition he was fired on, and slain, without the interchange of a word between him and his slayer.
Defendant asked three several charges ; they were refused, and he reserved separate exceptions. Each charge appears to have had for its object the mitigation of the offense, and of the .jury’s finding to some lower grade of homicide. Charges should never be given, unless there is some testimony tending to sustain and authorize the legal principle invoked. A charge, without testimony to support its hypothesis, is abstract, and should be refused, no matter how correct a legal principle it may assert. It has no application to the issue the jury is trying. — 3 Brick. Dig. 113, § 106.
But heat of passion, per se, never reduces a homicide to manslaughter. Nor will'mere words, however opprobrious, have that effect. The provocation must at least amount to personal violence, and the fatal blow must be the unpremeditated result of the passion thus aroused, to reduce the offense to manslaughter. — 3 Brick. Dig. 219, § 567. Even if it be conceded that deceased had wantonly, and without provocation, murdered defendant’s cousin an hour before, this, under the facts shown in this record, does not tend in the slighest degree to mitigate his offense. It rather tends to show a “ willful, deliberate, malicious, and premeditated killing. ”
The charges asked were all faulty, in that they assume that mere passion, or heat of blood, may mitigate a homicide, irrespective of the sufficiency of the provocation which engendered it; or, whether, in fact, there need be any provocation which excited the passion. They make mere passion, irrespective of its exciting cause, the mitigating factor. The law sanctions no such proposition.
The deceased is described in the indictment as “a man whose name is to this grand jury unknown.” This was sufficient,
In the present case, the indictment goes a step farther. After stating that the name of the deceased was unknown to the grand jury, it added, “ said man so killed was supposed to be named O. Mehan.” The indictment was demurred to, and the ground of demurrer relied on was repugnancy in its averments, in this, that it first averred the name of the deceased was unknown, and then contradicted that averment by giving his name. There is nothing in this objection. Supposition is not knowledge, nor is it such conviction that it can be averred as fact. If the indictment had averred that the name of the deceased was C. Mehan, and the only proof offered in support of the averment had been that his name was supposed to be C. Mehan, the testimony would have been rejected as illegal; and there was no testimony on which the jury could have found that the name of the deceased was known to the grand jury. The demurrer was properly overruled.
There is no error in the record, and the judgment is affirmed.
