Smith v. State, 88 Ala. 73

Smith v. State

88 Ala. 73 | Ala. | 1889

STONE, C. J.

1. Questions affecting the drawing and summoning of the jury which tried the defendant in this case, have been pressed upon our consideration. No objection was raised on either of these grounds in the trial court, and the record fails to show an error or irregularity in the matters complained of. — Act to expedite the trial of capital cases in Jefferson county, approved February 11, 1889; Sess. *76Acts, 324. We can not presume error in the matter of drawing the petit juries for the courts, or for the different weeks of the term, nor that the sheriff failed in diligence in summoning the persons drawn as jurors. Public officers are presumed to act faithfully in the discharge of their official duties, and whoever complains of any irregularity, unless it be the omission of some duty which should, and yet does not appear of record, takes upon himself the burden of proving the irregularity. — Guesnard v. L. & N. R. R. Co., 76 Ala. 452; 3 Brick. Dig. 264, §§ 163, 164, 165; Phillips v. State, 68 Ala. 469.

2. According to the testimony for the prosecution, the shooting of Spears and of Connelly, the deceased, grew out of one altercation, and was one continuous transaction. And the pursuit of Spears by defendant, firing at him as he ran, immediately after inflicting the- death-wound on Connelly, was not only part of the res gestee, but tended strongly to show the hostile spirit under which he was acting. Speaking on a kindred subject, the General Court (Supreme Court) of Yirginia in Heath's Case, 1 Robertson, 735, 743, said: “The-fact of the shooting, as being á part of the circumstances and of the res gestee, ought not to have been precluded from being given in evidence to the jury, although such evidence might itself have tended to prove a distinct felony committed by the prisoner.” — Whart. Or. Ev. § 31; Walters v. People, 6 Parker, C. C. (N. Y.) 15. There was no error in receiving this evidence.

3. There was an admission by the State, that certain witnesses, if present, would give certain testimony. This admission, however, was with the reserved right to object to any part of the testimony that was illegal. Part of the testimony was ruled out, on the objection of the State. There was no error in this. Witnesses can not be impeached by proof of particular acts, as facts, either criminal or immoral. Character, or the estimation in the community in which the witness is held, is a.legitimate means of impeaching or sustaining him; and neither on direct nor on cross-examination can the testimony go farther than to ascertain such character or reputation, and the means of knowing it. This excludes all knowledge of facts which the impeaching or sustaining witness may have, with the qualification that, being one of the community, he may take into account his own estimate of the reputation of the witness, who is attempted to be impeached or sustained, but can not consider *77any facts of which he may have knowledge. — DeArman v. State, 71 Ala. 351; Moulton v. State, at present term.

4-5. The first charge hypothesizes that there was a general row at Mary Goodwin’s house, and that she participated in it. There is no proof in the record that she took any part, except an attempt to prevent the shooting. This rendered the charge abstract, and required its refusal for that reason, if for no other. — 3 Brick. Dig. 113, § 106; Williams v. Barksdale, 58 Ala. 288. But it is otherwise faulty. A homicide perpetrated in a row, is not necessarily reduced below the crime of murder.

6-7. Charges are often asked in the following form: That the jury, in making up their verdict, may consider certain testimony, or parts of testimony. Such charges are frequently, if not generally asked, as a species of answer to some point urged in argument. As a general rulb, to which there are few exceptions, they should be refused. When the testimony in a cause is made up of several facts or circumstances, all bearing more or less on the question of defendant’s guilt, our rulings are, that such charges should be refused, for two reasons: first, that their tendency is to give undue prominence to those parts of the testimony on which the ruling is invoked; and, second, that they, at best, are but an argument to the jury. — Murphy v. State, 55 Ala. 252; 3 Brick. Dig. 111, 112, §§ 83, 84; Hussey v. State, 86 Ala. 34. We have no wish to qualify this general principle. There is, however, a limited, exceptional class of cases, which does not fall within the rule stated, and, therefore, does not fall within the rule. Testimony is sometimes admissible only for a specific purpose; such as, the peaceable character of a defendant, who is accused of a crime involving violence; or, testimony impeaching or sustaining a witness; or, testimony of previous threats, communicated or uncommunicated, made by the person on whom the injury was inflicted; or, testimony proving or disproving the character of the person alleged to have been injured, for turbulence, violence, or blood-thirstiness. In such cases, it is but right that the jury should be told to what extent this exceptional testimony should be weighed by them. In the last two of the cases supposed, if the jury finds the defendant guilty, the character of the deceased for violence or blood-thirstiness may be considered by them in determinating the degree of the homicide. This, because in altercations with persons of such character, doubts are more readily indulged, and proper defensive *78measures may become necessary, than would be permitted between persons of peaceable habit. “ On a]l doubtful questions as to who was the aggressor, the violent or blood-thirsty character of the deceased, if such be his character, enters into the account. More prompt and decisive measures of defense are justified, when the assailant is of known violent and blood-thirsty nature. But this principle is confined to defensive measures.” It furnishes no excuse or palliation for aggressive action. — DeArman v. State, 71 Ala. 351, 361.

The second charge asked simply declared the proper scope and function of the testimony, as applied to this case, and should have been given, whether asked by the prosecution or the defense. For this error the judgment of the Criminal Court must be reversed.

Reversed and remanded