Rogers v. State

62 Ala. 170 | Ala. | 1878

STONE, J.

On two points, the judgment of conviction in the present case must be reversed. The testimony given by Warren Tally, that the officer, charged with the duty of making the arrest, summoned him and Jack Green to help arrest the defendant, could not have influenced the conduct or motives of the accused — especially, as the fact of such summons is not shown to have been communicated to the prisoner. We cannot know what influence this testimony may have exerted on the minds of the jurors; and, by an inexorable rule, this must work a reversal of the case. — Campbell v. The State, 23 Ala. 54 ; Ogletree v. The State, 28 Ala. 53 ; Brock v. The State, 25 Ala. 104.

In the explanatory charge, given at the instance of the. State, the court also erred. Its language is, “ to make out self-defense, it is not sufficient that at the time of the killing the deceased had the apparent means of taking the life of, or doing great bodily harm to the defendant. There must have been an intent on the part of the deceased, coupled with a capacity, or seeming capacity, to take the life of the defendant, or to inflict on him some great bodily harm, and this intent must have been evidenced by some present act or demonstration of the deceased, inducing in the mind of the slayer a reasonable belief that the danger to his life or person was imminent.” The error of this charge is, that it postulates as one of the elements of self-defense, a real intent on the part of the assailed, to take life, or inflict grievous bodily harm. Its language is, “there must have been an intent on the part of the deceased,” &e. This constituent of the defense, like the others, need not necessarily exist in fact. _ If the intent be evidenced by a present act or demonstration, inducing in the mind of the slayer a reasonable belief that the danger to his life or person was then imminent, this is enough. And the jury must determine, from all the. evidence, whether the slayer acted on such well founded belief, and in defense of his person, honestly believed to be in imminent peril; or, whether he was influenced by malevolent feelings. The true rule is laid down in Harrison v. The State, 24 Ala. 67; Holmes v. The State, 28 Ala. 17; Dupree v. The State, 33 Ala. 380.

We are aware that the charge we have been criticising is a substantial copy of the first head note in Lewis v. The State, 51 Ala. 1. That head' note is scarcely justified by the opinion; but the opinion itself on this point, is a little confused. Taken altogether, it sustains the views above expressed. Appearances, calculated to produce in a reasonable mind, and really producing conviction of impending peril to life or limb, is what is meant by seeming danger. Juries must judge of this, and determine whether the blow was the result of such well grounded fear, or whether the appearances were made a pretext or excuse for unnecessary, or excessive violence. To justify the taking of human life, there must be, or reasonably appear to be, imminent, pressing, present danger to life or limb, not brought about by the aggressive act of the person thus threatened, and from which there is no other safe mode of escape. See Mitchell v. The State, December term, 1877.

The ruling of the Circuit Court, on the testimony of the witness Heard, excluding statements of Brazeale made to witness on Sunday before the killing, and not shown to have been communicated to the accused, was in accordance with the decisions of this court, and is free from error. — Powell v. The State, 19 Ala. 577; Carroll v. The State, 23 Ala. 38; Dupree v. The State, 33 Ala. 380; Edgar v. The State, 43 Ala. 45 ; Burns v. The State, 49 Ala. 370.

Beversed and remanded. Let the prisoner remain in custody until discharged by due course of law.