62 So. 977 | Ala. Ct. App. | 1913
— The principles . of law applicable to one theory of the defense here are so clearly stated by Judge Coleman, in Hooks v. State, 99 Ala. 168, 13 South. 768, that we quote as folkrws: “Where one person' detects' another ip the act of adultery with his wife, and immediately slays the adulterer or his Avife, as a matter of law the provocation is sufficient to reduce the killing to manslaughter. The law does not declare that anything less than actual sexual intercourse is a sufficient provocation, * * * to reduce the offense from murder to manslaughter. It may be that the detection of . another, under circumstances such as testified to by the defendant, may provoke and engender passion to such a degree as to overthrow reason, and if, under the influence of passion thus aroused, he immediately attack the offending party and' slay him, before cooling time has intervened, not from malice or unlawful formed design, but from such passion thus provoked, the offense may be manslaughter. Whether the party acted under the influence of such a passion, and Avhether the provocation was sufficient, and whether there had been ‘cooling time,’ are questions of fact to be determined by the jury. The principle we announce is that the laAV does not declare the provocation sufficient, unless the parties are detected in the act; but a jury may say Avhether the compromising position of the parties Avas sufficient to arouse passion in the husband to such a degree as to overthrow reason, just as the jury may say in some other cases Avhether the offense Avas the result of sudden and sufficient provocation as to reduce: the offense from murder to manslaughter.” The law, however, never wholly excuses the husband from responsi
Here the defendant was convicted of only manslaughter in the first degree; and hence that portion of the alleged errors of the trial court which relates exclusively to or affects solely that ground of the defense that was based on the theory that the killing Avas done under a sudden heat of passion Avas, if error, error without injury — whether that heat of passion Avas aroused in the breast of defendant by the fact of his apprehending his Avife and deceased in the act of adultery, or in such compromising position as to indicate it, or Avas engendered by the assault alleged to have been committed on him by the deceased a few moments after such apprehension or discovery. By the verdict the defendant got the full benefit of either of these theories. This being true, and it being further true that on a subsequent trial neither of these issues can arise again (if the defendant, as no doubt he Avill, pleads this verdict, finding him guilty of manslaughter in the first degree, as an acquittal of the charge of murder), we deem it entirely unnecessary to discuss those alleged errors of the trial court Avhich, if errors, are of such character as may be said to be clearly confined in their deleterious or injurious effects solely to the issue as to Avhether defendant was guilty of murder or voluntary manslaughter.
On the next trial (Avhich Ave are of opinion the defendant- is entitled to for reasons hereinafter considered),
The evidence for the defendant, as to this defense, tended to show that on the night of the killing, he, a young married man, went home about 10 o’clock from the drug store, where he clerked, in the town of Slo-comb; that as he approached his home he discovered that the light in his room was dimly burning; that, before entering the house, he stopped in the yard a few moments, and while standing there he heard somebody on the inside of the house talking in a low tone, whereupon he walked nearer to the house and looked into the room through the window (the inside shade, Avhich covered it, lacking a few inches of being pulled entirely down), when he discovered his wife and a man, whom he did not then recognize, on the bed together; that defendant then ran up the steps to the front door, and through it saw a man going out of the back hall door, whereupon defendant came back down the front steps and ran around the house to the back porch, and found the man standing there on the back porch; that defendant halloed twice, demanding to know who it was, to neither of Avhich demands the man made any reply, but immediately, on the second demand, defendant saw him pull his pistol out of his pocket; and that then the defendant quickly pulled his own, and commenced' to shoot at the man, Avhile he was still standing on the back porch, firing then four shots at him (the only shots
In addition to all the foregoing testimony, which we think was material on the issue of self-defense, and which was let in by the court, the defendant also offered to prove that a short time before the killing he, having heard as a rumor that deceased was intimate with his (defendant’s) wife went to deceased, who was a cousin of defendant, and told him about these reports, and requested him not to again visit his home. The court declined to permit this proof. The defendant also offered to prove that in the afternoon before the killing that night deceased told defendant’s witness McLain that he had an engagement with defendant’s wife that night, and that when witness advised him that he had
While this evidence offered by defendant, which tbe court declined to let in, ivas, of course, clearly not admissible in support of any theory that tbe killing was done by defendant under a sudden beat of passion provoked by tbe discovery of bis wife and deceased in tbe act of sexual intercourse, and hence could have been of no benefit to him on such a theory, yet Ave are of opinion that it was admissible, and Avould have been beneficial to defendant in support of bis contention that tbe killing was done in self-defense, in that it tended to illustrate tbe conduct of deceased at the time of the tragedy, to show a motive on bis part, and to show that be was tbe assailant. Who was tbe aggressor at that time was a material inquiry for tbe jury, and whatever evidence tended to shed light on tbe question Avithout obtruding upon tbe minds of tbe jury matters which were foreign or of doubtful pertinency to that inquiry, should not have been excluded from their consideration. Tbe excluded eAudence gives character to tbe motive and conduct of deceased, and aids in the interpretation of bis acts at tbe time of tbe shooting. It tended to establish facts from which, coupled Avith other facts in tbe case, if believed by tbe jury, they could reasonably infer, among other things, a reckless, dare-devil state of mind on tbe part of deceased at tbe time of tbe fatal difficulty, and one, like that of a midnight burglar, that Avas bent on the accomplishment of bis purpose at any risk-prepared, ready, and entirely Avilling to kill, if thought
.Under the authority of Gafford v. State, 122 Ala. 62, 25 South. 10, and on principles there declared and fully amplified, we are of opinion that, the evidence which. the . court declined, to allow defendant to introduce was clearly admissible under.the circumstances of this case,, and that defendant should have had the benefit of it.
. The physician who attended deceased, as a witness for the state, testified that he examined the wounds of' deceased, and that the shot, which entered the stomach, ranging upwards to the lungs, produced his death, and-that after making the examination he went that, same night down to see defendant and asked him to show witness the position in which he and deceased were standing when the latter was shot, "which defendant then described, and which witness detailed on .the stand. The. solicitor then asked the witness, “From the position in which the defendant stated that he was standing at the time he fired the shots, what would have been the relative position of deceased with defendant, at the time of the firing of the shots?” Over the defendant’s objection
In the Encyclopedia of Evidence, vol. 5, p. 588, we find the folloAving text: “According to the overwhelming weight of authority, the opinions of medical experts are not admissible to show the position of an injured person at the time the wound was received, or the position of the person who inflicted it, because, as has been said, surgeons are not presumed to be experts in the matter of giving or receiving wounds, and the jury are equally capable of drawing, proper inferences from , the facts proved.” The long list of cases cited in the note fully sustain the text. See in connection, as of similar purport, the following cases: Foster v. State, 70 Miss. 755, 12 South. 822; McKee v. State, 82 Ala. 32, 2 South. 451; Dumas v. State, 159 Ala. 44, 49 South. 224, 133 Am. St. Rep. 17.
The remarks of the court in the presence of the jury, which were excepted to,, were, we think, clearly improper and prejudicial to the interest of defendant.
■ We need not discuss other alleged errors, as they are not likely to arisé on another trial, for reasons herein-before mentioned.
For the errors pointed out, the judgment of conviction is reversed, and the cause remanded.
Reversed and remanded.