106 Ala. 30
Ala.
1894
BRICKELL, O. J.

— In the course of trials by jury, a grave duty resting on the court not infrequently attended with much difficulty, is to guard against the introduction of irrelevant evidence. Such evidence is but seldom harmless ; if admitted, it often necessitates widening the scope of inquiry, directing it to facts and circumstances whiсh, if found, ought not to exert an influence in the determination of the issues; may surprise and oppress the party against whom it is introduced, who cannot be presumed to be prepared to meet other than material, relevant evidence ; prolongs trials injuriously, and-has the effect, or tendency,to mislead the jury directing their attention from the evidence on which the verdict ought to be based. The test of thе relevancy of evidence, it is said by Wharton,is, whether it “conduces to the proof of a pertinent hypothesis ; a pertinent hypothesis being one, which if sustained, would logically influence the issue.” — 1 Whart. Ev., § 20.

The cause of quarrel resulting in the affray in which the homicide was committеd appears to have originated ‍​​‌​​‌​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌‌​​‌​​‌​​​​‌‌​‌​‌​‌‌‌‌​​​‍in that which is termed in the evidence, “the play,” in which the brother of the deceased was bornе about *33against his will, by the defendant, Ikard and others participating, and until the killing the quarrel was continuous. But without concert or combination, thеre were different participants in it. While the affray was in progress between the defendant and the deceased, without the knowledge of either, Ikard manifested a purpose to interfere for the assistance of the defendant, and was resisted by the brother of the dеceased. These occurrences' may be traced to, and sprang from the source provoking the affray, and are in point of time coincident with it; they were not parts of the res gestae ; they were mere incidents happening casually without the knowledge, design, or exрectation of the deceased, or of the defendant. The controlling, central inquiry was, the fact that the homicide was committеd by 'the defendant not being matter of controversy, as to the degree of guilt of the defendant, or whether he was not excusable or justifiаble, because the homicide was committed from necessity, in defense of his own life, or for the prevention of great bodily harm. The dеgree of his guilt could not be magnified or' diminished because ‍​​‌​​‌​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌‌​​‌​​‌​​​​‌‌​‌​‌​‌‌‌‌​​​‍of these occurrences happening without his knowledge, design,- or expеctation. Nor could these occurrences elucidate the inquiry whether he was excusable or justifiable, necessitated to tаke life to save his own, or to preserve himself from great bodily harm. Nor can they throw light on the inquiry, whether he or the deceased was the aggressor in the affray. There is no pertinent hypothesis involved in the issue, to the proof, or disproof of which these occurrenсes have a logical tendency; as to the defendant they were essentially res enter alios acta, which ought not to affect him. If Ikard was the aggressor, if by his cоnduct he provoked these occurrences, upon him the consequences, not upon the defendant, ought to be visited. But upon him, nо injurious consequences ought tobe visited, until an inquiry be made into his guilt. If the inquiry is made the scope of the evidence is widened, directed to сollateral facts, and a side issue is formed upon which the jury are to pass, and which is involved in the general verdict they are to render. We are of the opinion that the circuit court erred in the admission of evidence of these occurrences. A more patent error was committed, in the admission of evidence that immediately after the *34homicide, Heard disappeared for three wеeks. If he were charged with the homicide or complicity in it, and was on trial, evidence of his flight immediately after the homicide, the flight being unexplained, might be a criminating circumstance of more ‍​​‌​​‌​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌‌​​‌​​‌​​​​‌‌​‌​‌​‌‌‌‌​​​‍or less value. But by his flight, the defendant cannot be criminated, nor relieve himself by explanation of its criminating tendencies. The remaining rulings of the court touching the admission or rejection of evidence, are free frоm error.

It is stated in the bill of exceptions, that exceptions were not reserved to the giving or refusal of the instructions which are introduced into it. Prior to the recent • statute, approved December 17th, 1894, the rule prevailing in this State was, that exceptions to instructions given or refused, must have been reserved before the retirement of the jury. The statute has changed the rule, and now, under its provisions, when the instructions are in writing, an exception is presumed, at the instance of the party asserting error in the giving or refusal of them. The trial in the court below was had after the change of the statute, and the correctness of the instructions is open for revision, as it would have been fоrmerly had exceptions been reserved before the retirement of the jury.

There is a marked familiar distinction between civil and criminаl cases in respect to the degree or quantity of evidence which will support the verdict of a jury. In civil cases, a mere preponderance of evidence, if it satisfies the minds of the jury is sufficient. But in criminal ‍​​‌​​‌​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌‌​​‌​​‌​​​​‌‌​‌​‌​‌‌‌‌​​​‍cases, “neither a mere preponderance оf evidence, nor 'any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt.” — 3 Green. Ev., §29. In instructions given the jury by the court ex mero motu, or at the instance of the State, referring to the еvidence and its sufficiency to support a verdicc, or bo prove a criminating fact, the distinction must be observed, or the instruction will not be free from error. The distinction was lost sight of in the first instruction given at the instance of the State. The jury were instructed that if they believe from thе evidence, not full belief to the exclusion of all reasonable doubt, but a belief generated it may be by a mere prepondеrance of *35the evidence, that the defendant provoked the difficulty in which the killing occurred, he was not entitled to an acquittal оn the doctrine of self-defense. ‍​​‌​​‌​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌‌​​‌​​‌​​​​‌‌​‌​‌​‌‌‌‌​​​‍“Believing from the testimony that the facts, exist is not enough. The belief must 'be so strong, as to leave no reаsonable doubt of its truth.” — Pierson v. State, 99 Ala. 148; Heath v. State, Ib. 179 ; Rhea v. State, 100 Ala. 119.

The sixth instruction requested by the defendant, ought to have been given. It merely re-affirms the proposition, which ought now to be familiar, that a probability .of innocence, is the equivalent of a reasonable doubt, and requires the acquittal of the defendant.— Bain v. State, 74 Ala. 38; Winslow v. State, 76 Ala. 42; Smith v. State, 92 Ala. 30; Croft v. State, 95 Ala. 3.

The remaining instructions have been considered, and we find in giving or refusal of them no reversible error. The subject of them has been of such frequent consideration and decision in this court, that it is unnecessary to protract the opinion by a discussion of them.

The judgment, for the errors we have pointed out, must be reversed, and the cause remanded. The defendant will remain in custody, until discharged by due course of law.