Roberts v. State
68 Ala. 156
Ala.
1880
Check Treatment
SOMEBYILLE, J.

The former rule was, that uncommu-nicated threats, in cases of homicide, made by the deceased against the accused, were not competent evidenсe for the latter, unless they constituted a part of the res gestee.—State v. Carroll, 23 Ala. 28; Clark’s Man. Cr. Law, p. 63, § 396. In Burns v. The State, 49 Ala. 370, this was laid down as the general rule, liable to certain exceptions. There is, however, apparеnt in the more recent cases a decided modification of this doctrine, greatly favorable to the admission of such evi-*164denee, in many instances where it was formerly excluded, Wiggins v. The People, 3 Otto (93 U. S.), 465.

It is an important and well-settled princiрle, in the first place, that no threats previously made by the deceased,, whether communicated to the defendant or not communicated, are admissible in triаls for homicide, unless it appears from the testimony that, at the time of the killing,, the deceased had sought a conflict with the accused, or was making some demonstrаtion, or overt act of attack, towards the accomplishment or perpetration of such threats.—Myers v. State, 62 Ala. 599; Evans v. State, 44 Miss. 762; Payne v. State, 60 Ala. 80. In other words, the circumstances in; evidence must propеrly raise a case of self-defense. Where.’ this is so, evidence of uncommunicated threats, recently ipade, are admissible, for the purpose of showing the quo animo of such demonstration, or attack.—Whart. Cr. Ev. § 757; Eiland v. State, 52 Ala. 323; Stokes v. State, 53 N. Y. 164; State v. Turpin, 77 N. C. 473; State v. Hays, 23 Mo. 287; Keener v. State, 18 Ga. 194; Campbell v. People, 16 Ill. 17; Horr. & Thomp. Cas. Self-Def. 927; Pritchett v. State, 22 Ala. 39. So, uncommunicated threats are frequently admitted, for the purpоse of corroborating those that are communicated, and which ‍​‌‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌​​‌‌​‌‌​​​​​‌​​‌​​‌​​‌​‌​‌‌​‍have already been admitted in evidence.—Haller's case, 37 Ind. 57; Whart. Cr. Ev. § 757. And, likewise, where it is doubtful, from the testimony, which party commenced the affray, threats of this character are-admissible, as in the nature of facts, to show who was probably the first assailant.—Scroggins’ case, 37 Cal. 677; Whart, Cr. Ev. § 757.

Whether such threats, taken in connection with the circumstancеs of the affray leading to and accompanying the killing, are sufficient to justify the act of homicide, is a question of fact for the jury, and it is not permissible for the court to determine it as a matter of law. They cannot be-excluded, if there is the slightest evidence tending to prove a hostile demonstration, which can be reasonаbly interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life, or of other grievous bodily harm. Pridgen v. State, 31 Tex. 420; Horr. & Thomp. Cases Self-Def. 416.

The evidence here tends tо show that the deceased was a “very turbulent, overbearing, and vindictive man at all times, and more-, especially so when under excitement.” It also tends to provе'that he-made violent threats against the accused, within one or two hours before the killing, at which time the deceased loaded his gun, announcing his intention to kill the aсcused before night. These threats were ad-*165snissible, we think, under all the circumstances, to show tbe <quo animo o£ the deceased in soon afterward going to the store which was the habitation of the accused, and from which the law did not require that he should retreat. If all the facts of the ease were sufficient to create a just apprehension, in the mind of a reasonable man, of imminent danger to the life or limb of the accused, he could lawfully act upon appearances, and kill his assаilant. It was not necessary that the danger should be real.—Carroll v. State, 23 Ala. 28; Clark’s Cr. Digest, § 490, and cases cited.

The character of the deceased as a violent, dangerous, overbearing, or turbulent man, was also admissiblе evidence for the accused. Such evidence is always admissible, where uncommunicated threats are received, ‍​‌‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌​​‌‌​‌‌​​​​​‌​​‌​​‌​​‌​‌​‌‌​‍and for the like purpose of illustrating thе circumstances of the killing, and of qualifying, explaining and giving point to sueh. threats, as also to the conduct of the deceased at the time of the killing. Eiland v. State, 52 Ala. 323; Bowles v. State, 58 Ala. 335; Fields v. State, 47 Ala. 603. A demonstration, or overt act of attack, made by such a one, may afford much stronger evidence that the life or limb of the person assailed was in imminent peril, than if performed or made by one of an opposite character or disposition. Hence, it would reasonably justify a resort to more prompt measures of self-prеservation.—Pritchett v. State, 22 Ala. 39; Stokes’ case, 53 N. Y. 164. A man’s character in this respect may be so violent, as that he may be a walking menace to the community in which he resides.

These views, as to the admissibility of thrеats, are not in harmony with the former decisions of this court, but are, as we think, in full accord with the true doctrine, as established by the more recent cases of the highest courts in this country. Whart. Cr. Ev. § 757; Rogers v. State, 62 Ala. 170; Carroll v. State, 23 Ala. 38; Cases of Self-Def. (Horr. & Thomp.) 927, 531, 539.

The Circuit Qourt erred in refusing to admit the evidence of the bad character of the deceased for violence, and of the threats, communiсated and uncommunicated, made by him against the accused.

In Dupree’s case, 33 Ala. 380, no demonstration by the deceased was proved, except that he ran towards the acсused, apparently unarmed. A character for violence having been proved against him, communicated threats were admitted, as indicating an angry and revengeful spirit towards the prisoner, and a determination to do violence to his person.

In Carroll’s case, 23 Ala. 28, there was no proof of a violent or turbulent ‍​‌‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌​​‌‌​‌‌​​​​​‌​​‌​​‌​​‌​‌​‌‌​‍character on the part of the deceased, and *166uncommunieated threats by tbe latter against the accused were excluded, when introduced to show that the mere entry of the deceased on the premises of the prisoner was made with intent to inflict personal violence. The action of the court was put upon the ground, that the record showed no offer of violence, and that the precise character of the threats was not disclosed.

Where the character of a man is notoriously turbulent and bloodthirsty, and his threats are brutal, ferocious, and recently made, his armed entry upon the premises of his assailant might readily be inferred by a jury as being of sо hostile a character as to place such assailant in imminent danger. If, however, his character be that of a peaceful and quiet man, or the threats be not recent, nor at all vindictive nor specific, or he be unarmed, and his approach be apparently not hostile, the conclusion of the jury might reasonably be the reverse.—Whart. Cr. Ev. § 69.

There doubtless are cases, where one has a right to anticipate his adversary, and is not compelled to stand still and wait for аn advantage to be taken of him, in an emergency rendered imminently dangerous by complicated surroundings. But these cases are rare, and the right is not to be too readily inferred by juries. If the danger is not apparently imminent, which would reasonably justify a resort to it, the assailant does so at his own hazard. His own personal fear, or timid cowardice, will not excuse his undue precipitation of action. If he lie in wait, and take the life of his adversary, without an impending necessity, which imperiously requires such аct for the prompt preservation of his own life, he is guilty of murder, and cannot complain at suffering the just penalty of the law. No mere threats, however violent or vindictive, will justify the shooting of their author on sight, unless he be at the time engaged in some overt act, or demonstration, such as we have above described.—Grainger v. State, 5 Yerg. 459; 26 Amer. Dec. 278, and note 280; Lewis v. State, 51 Ala. 1; Eiland v. State, 52 Ala. 322; Mitchell v. State, 60 Ala. 26.

It is a principle, many times announced by this court, that, in cases of homicide, the law presumes malice from the use of a deadly weapon, and easts on the defendant thе onus of repelling the presumption, unless the evidence which proves the killing shows also that it was perpetrated without malice.—Hadley v. State, 55 Ala. 31; Murphy v. State, 37 Ala. 142. And whenever malice is shown, and is unrebutted by circumstances of the killing, or by other facts in evidence, ‍​‌‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌​​‌‌​‌‌​​​​​‌​​‌​​‌​​‌​‌​‌‌​‍there can be no conviction for any less degree of homicide than murder.—Clark’s Man. Cr. Law, § 469.

*167The objection to thе organization of the grand jury was not well taken. By the act of February 13, 1879, the number of grand jurors for the county of Monroe and other counties was reduced to fifteen persons.—Acts 1878-79, p. 204. It sufficiently appears from the record, we think, that twelve jurors were selected from the original venire, and that three more were drawn and added from the sis new names selected tо complete the grand jury.

The defect in the names of two of the jurors, as found on the list served on the defendant, was no legal ground for a motion to quash the venire.—Code (1876), §§ 4872, 4876; Kimbrouyh v. State, 62 Ala. 248; Floyd's case, 55 Ala. 61. The namеs could have been discarded, on motion by the defendant, and other jurors summoned in their stead.—Clark’s Cr. Digest, § 567, and cases cited.

The above views cover the principles- involved in the charges given and refused by the court, the correctness of which can be .easily determined without reference to them in detail.

The judgment of the Circuit Court is reversed, and the cause remanded. In the meanwhile, ‍​‌‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌​​‌‌​‌‌​​​​​‌​​‌​​‌​​‌​‌​‌‌​‍let the prisoner be re-iained in custody, until discharged by due course of law..