Wood v. State

128 Ala. 27 | Ala. | 1900

McCLELLAN, C. J.

One who intervenes in a pending difficulty in behalf of a brother and takes the life of the other original combatant stands in the shoes of the brother in respect of fault in bringing on the difficulty, and he cannot defend upon the ground that his brother was in Imminent and deadly peril and could not retreat, unless the latter could have defended upon that ground had he killed his assailant. Henee in such cases it is a material inquiry whether defendant’s brother was at fault in bringing on the difficulty with the deceased, and the same doctrine obtains, of course, where the charge is assault with intent to murder; and as hearing upon this inquiry presented in the case at bar the court properly admitted the testimony of Brooks to the effect that Marion Wood approached him with his hand in his pocket and apparently on a pistol and said: “I came to see you about what you did to me yesterday.” It is of no consequence that Felix Wood, the defendant, did not hear this remark and ivas not, when he intervened, aware of any fault on the part of Marion in bringing on the difficulty: He entered into the combat at his own peril. Gibson v. State, 91 Ala. 64; Whatley v. State, 91 Ala. 108; Karr v. State, 106 Ala. 1. Upon this principle, as well as for other considerations, charges 1, 3 and 4 Avere properly refused to the defendant. Moreover, the evidence referred to aatis clearly admissible upon the further grounds, first, that it was of the res gestae of the main fact; and, second, there was other evidence from AAdiich the jury might have found that the difficulty Aims the result of a conspiracy between Marion Wood, the defendant and others to assault and kill Brooks.

The trial court did not err in excluding testimony going to the particulars of the previous difficulty between Brooks and Marion Wood. — Stewart v. State, 78 Ala. 436.

Charge 5 AA'as properly refused. It is not essential to a conviction of an assault with intent to murder that the defendant acted deliberately and with premeditation. Meredith v. State, 60 Ala. 441; Lawrence v. State, 84 Ala. 425; Welch v. State, 124 Ala. 41; Gilmore v. State, 126 Ala. 21.

The affirmative charge Avas of course properly refused to defendant, there being evidence tending to prove every averment of the indictment and the plea being “not guilty.”

Affirmed.