Sherrill v. State, 138 Ala. 3

138 Ala. 3 | Ala. | 1902

HARALSON, J.

The evidence sIioavs that the defendant, after he killed King, fled from the county and Avent to Texas, Avhere he remained until a short time before the trial, Avhen he returned and voluntarily surrexxdered himself to the sheriff’ When the Sheriff had testified for defendant to the surrender, defendant's counsel asked him, “Did you not receive information from the defendant six months ago, that you need not hunt for him, but that he would be back before the Spring term, 1902, of the circuit court, and that he xvould coxxxe at that time but for his bad health, and they feared lying in jail so long xvoxxld further impair his health?” Oxx objection by the solicitor, the question Avas not allowed to be answered, and in this there xxras xxo errox\ Flight soon after the commission of the offense charged, is an evidentiary fact in the nature of an implied admission; and xxdxile it may be explained or qualified by accompanying declarations, oxx the principle of res gestae, a subsequent- admission or declaration, forming no paid of the res gestae, is not admissible for that purpose.- — Chamblee v. State, 78 Ala. 466; Jordan v. State, 81 Ala. 20; Vaughan v. State, 130 Ala. 18.

The evidence for the defendant, tended to shoxv that the difficulty between'the parties, happening in a lane betxveen their respective places, could be seen and was seen by certain Avitnesses examined by defendant from his field, at a certain distance from the lane. The State in rebuttal sought to shoAv by one» Alsabrooks, Axdio Axras not present at the time of the killing, that the. fight could not have been seen by these Avitnesses, oAving to obstructions in the way. He testified that these obstructions consisted of a x-oav of trees and bushes about twenty or twenty-five yards in depth all along on the inside of defendant’s field, and opposite the place where the killing occurred, and that the land was rolling. The solicitor asked him, whether or not, standing at Horton’s patch in defendant’s field, he could see the top of the fence where the fighting took place. This question was objected to by defendant because its object was to impeach defendant’s witnesses and because illegal and irrelevant, and because it had not been shown that witness made his observations from the point where defendant’s witnesses testified they made theirs. Other questions of the same character were asked and allowed against like objections. The evidence of what this witness could or could not have seen should have been excluded. The conditions under which he made his experimental observations, some months after the difficulty, were not shown to be the same1 as those under which defendant’s witnesses testified they saw the fight. Ala. G. So. R. Co. v. Burgess, 114 Ala. 588, 595.

The defense being that the blow was struck by defendant to prevent the homicide of his wife by the deceased, the wife, as well as the defendant, must have been in a condition to invoke the doctrine of justifiable homicide. Tie who provokes a personal encounter, in any case, thereby disables himself from relying on the plea of self-defense in justification of a blow he struck during the fight.- — Scoggins v. The State, 120 Ala. 369. “Neither he who provokes a difficulty, nor his voluntary helper, can with impunity resist to extreme results, the assault he has provoked unless he has clearly retired from the conflict; and to restore him to the full measure of se defendendo, his conduct must plainly show that his purpose has ceased to he hostile.” — Bostic v. State, 94 Ala. 45; Karr v. State, 106 Ala. 2. On these principles the portions of the general charge of the court, which were excepted to by defendant, were without reversible error.

Charge 40 requested by defendant is confusing, misleading and abstract. There was no evidence, as the charge hypothesizes,, of a fight between Mr. and Mrs. King. ■

Charge 6 has heretofore been approved as a correct instruction, which should be given.- — Bones v. State, 117 Ala. 138. In Baldwin v. State, 111 Ala. 15, and in Horn v. State, 102 Ala. 145, charges otherwise similar were condemned, solely on the ground, that in the charges, the word “reasonable” before the word “supposition” was omitted. — Yarbrough v. State, 105 Ala. 45, 56.

Charge 20 was bad, if for no other reason, in that it referred thei question of self-defense, — one of law, — to the jury.

Charges 19, 29 and 34 Avere misleading in that they authorized the jury to find that Mrs. Sherrill was not at fault in bringing on the difficulty betAveen herself and Bob King, unless she had committed some overt act against said King, notAvithstanding she had provoked the difficulty Avith him by her attack on his wife.

Charges 22, 37 and 39, Avere each bad. The defendant’s right to strike, depended on the right of his wife to strike, regardless of his knoAvledge of who brought on the difficulty.

The fact that Mrs. Sherrill was in great bodily harm from Mrs. King did not authorize, the defendant to strike Mr. King with impunity, unless Mrs. Sherrill was without fault in bringing on the difficulty and could not retreat without increasing her peril, a feature of the evidence charge 25 ignores, rendering it bad on that account. — Bell v. State, 115 Ala. 39; 1 Mayfield Dig. 804.

Charge 35 is bad. Its tendency is to require the jury absolutely to reconcile the testimony which is in hopeless conflct.

Charge 36 omits to state the elements of the different grades of homicide referred to therein. It is not clear and unambiguous, and would have required explanation from the court, to' make it so. It Avas calculated to mislead and confuse the jury. — Adams v. State, 115 Ala. 90. It also tends; to- lead the jury to the conclusion, that a conviction of any one of the offenses named, would in the; opinion of the court be proper.

'Charge 38 required too high a state of proof and was calculated to mislead. — Webb v. State, 115 Ala. 53; 1 Mayfield Dig. 765, § 24.

Charges 1, 2 and 3 given for the State have been in substance many times approved. — Jackson v. State, 94 Ala. 86; Hornsby v. State, 94 Ala. 55; Wilkins v. State, 98 Ala. 1.

We discover no fault in charge 4 given for the State. Its evidence, as well as defendant’s own testimony showed that defendant knew that, his wife provoked or brought on the difficulty, and it was not error in the couid to refer to this as a fact.

Charges 5 and 6 for the State assert correct principles of law. — Lacy v. State, 84 Ala. 1.

For the errors indicated, the judgment must be reversed.

Reversed and remanded.