Rutledge v. State, 88 Ala. 85

Rutledge v. State

88 Ala. 85

Ala.

1889

Check Treatment

McCLELLAN, J.

Wе understand the rule in respect to the admission of evidence, on the part of a defendant- on trial for murder, of previous threats by, or difficulties with, or ill-feeling on the part of the deceаsed, to be this: that when any phase of the testimony would, if believed, present a case of self-defense, then the accused, using this aspect of the facts adduced as a predicate therefor, may go further, and strengthen it, by showing that the deceased had threatened him, or entеrtained ill-feeling toward him, or that there had been difficulties between them; and a like doctrine obtains with respect to evidence of the violent character of the slain. Or, to state thе principle in a more concrete form, the evidence adduced must have some tendency to establish the constituents of the right to destroy life that life may be preserved- — which arе, that the accused was without fault in bringing on the fatal rencounter; that he was in imminent peril, real оr reasonably apparent, of loss of life or limb; and that he could not, as the matter prеsented itself to him, retreat or avoid the combat with safety to himself — before any state of facts exists in the case upon which testimony of character, threats, ill-feeling, &c., of the deceased, could shed any light. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍theory of the rule is, that a right to *90kill can never be tbe result of tbe viоlent, blood-thirsty disposition, revengeful feeling, or threats of the deceased; and hence, until thеre are facts offered which go in some measure to establish the necessity to strike as the law defines that necessity, such evidence is patently irrelevant. These matters, in other words, аre competent to give character to a necessity otherwise shown; and no such nеcessity being otherwise shown, there is an utter absence of the predicate upon which аlone such qualifying evidence should be received. — Prickett v. State, 22 Ala. 39; Quesenberry v. State. 3 S. & P. 308; Franklin v. State, 29 Ala. 14; Roberts v. State, 68 Ala. 156; Myers v. State, 63 Ala. 599.

We are aware that there are some cases, notably that of Dupree v. State, 33 Ala. 380, which militate against the views expressed above, аs to communicated threats — and evidence of ill-feeling, difficulties and character (of thе deceased) stands upon the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍same footing, when brought to the touch of the principle undеr consideration — but we can not follow them. We are unable to conceive how any sоrt of proof as to the animus of the deceased can be of importance, in a case where the worst character, the bitterest enmity, and the most deadly threats, on his part, may be fully conceded, and it be shown that no act consonant with such character, or resulting from such enmity, or in the execution of such threats, was done by the deceased; or that, if an act wаs committed by him, it grew out of a present provocation on the part of the defendant, or was not greatly dangerous to life, or was of such character as that the defendant might havе safely retreated and avoided the danger.

In the case at bar, the evidence for the prosecution shows an unprovoked, unnecessary, deliberate, and malicious killing. The testimоny of the defendant in his own behalf entirely fails to make a case of self-defense, in that it affirmatively shows that he followed the deceased, accosted him in relation to a difficulty they hаd had that morning, and thus brought on, and was the aggressor in the difficulty; and also, in that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍there is nothing adduced which tends in any degree to show that defendant was in any real or apparent danger, which he cоuld not have easily and safely avoided by a retreat. On no phase of the evidence, thеrefore, was there a predicate for the admission of proof of former difficulties in thе interest of defendant, or ill-feeling on the part of the deceased toward him. The evidence excluded was all of this character, and *91the action of tbe Circuit Court in that behalf was frеe from error.

The evidence as to previous difficulties, moreover, went to the particulars or merits of such difficulties, as distinguished ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍from the collective fact of their gravity or the reverse, and was, on this ground alone, properly excluded. Lawrence v. State, 84 Ala. 424; Garrett v. State, 76 Ala. 18; McAnally v. State, 74 Ala. 9; Gray v. State, 68 Ala. 66; Ross v. State, 62 Ala. 224.

All the charges requested by the defendant, which were refused by the court belcnv,-were bad, in that they pretermitted all inquiry as to the duty and feasibility of retreat on the part of the defendant. — Eiland v. State, 52 Ala. 322; Mitchell v. State, 60 Ala. 60; Poe v. State, 87 Ala. 65; Cribbs v. State, 86 Ala. 613.

Some, if not all of these instructions, were faulty on other grounds also. Thus, the aspect of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍evidence most favorable to the defendant, shows that he wаs the aggressor on the occasion of the homicide — Jackson v. State, 83 Ala. 76; yet charge No. 1 authorizes an acquittal without an inquiry on the point, whether he provoked or brought on the fatal rencounter. — Jackson v. State, 77 Ala. 18; Tesney v. State, 77 Ala. 33; DeArman v. State, 71 Ala. 351; Cleveland v. State, 86 Ala. 1.

Charge No. 2 was bad, also, as being argumentative, and singling out and giving undue prominence to selected portions of the evidence. — Goley v. State, 85 Ala. 334.

The record discloses no error, and the judgment below is affirmed.