Pierson v. State , 12 Ala. 149 ( 1847 )

GOLDTHWAITE, J.

l.The three first of the charges which the circuit judge refused to give at the instance of the prisoner, do not seem to have been called for by any evidence before the jury. It will be seen by reference to the bill of exceptions, there was no proof of any assault by the prisoner, which justified or excused him (in the legal sense of these terms) in taking life in self defence, and we must presume the proper instructions were given as to the effect which the conduct of the deceased might have had upon the question of malice and heat of blood. So too,, it will be seen, there is nothing from which this court can ascertain that the prisoner, in point of fact, did or did not wipe his knife deliberately, or otherwise, after the fatal blow. It may be, that all these charges were refused on the ground, that no proof was before the jury to warrant their being asked. And such in our judgment is the legal presumption arising out of the omission to state the circumstances of proof, from which the right to instructions might appear.

2. Lest, however, it should be supposed our opinion was, that under peculiar circumstances it might be the prisoner’s right to require such charges, we shall briefly state the law as we understand it. The common law of this State on the subject of homicide, is derived from, and the same as, the common law of England, and whenever that law requires the person assailed to decline the combat, or to retreat, before he will be excused in taking the life of his adversary, our law requires the same. There is nothing in our institutions which has abrogated the rule, that no one is excused from shedding his brother’s blood, unless the assault upon him is such as to produce a well-grounded apprehension of iminent danger to life or limb.

3. The refusal to charge, that the wiping by the prisoner of his knife, after the killing, was not evidence that he committed murder, is not, as we have before said, called for by the proof, but if it was, we think was not so controlling, or so insignificant a circumstance as to warrant the prisoner in calling for the charge, that it was not evidence of murder, or to justify the court in instructing the jury it was. Doubtless it was a fact evincing coolness, and self possession, and as such properly left to the jury, in connection with the other circumstances for them to determine, whether the killing was done with malice aforethought, or upon sudden passion, induced by the assault, and slapping in the face, or other heat of blood, lessening the crime to manslaughter.

4. Upon the question, whether, according to the course of the common law, juries in this State are judges of the law as well as the fact, we consider it as substantially settled by what is said by us in The State v. Jones, 5 Ala. 666. There the point was, whether the jury was properly sworn, to give a true verdict according to the evidence' — the prisoner insisting the oath should be, to find a verdict according to lawdcaA. evidence. We there considered the court as the proper tribunal to expound the law to the jury, and that the latter had no other control over questions of law than that arising out of the right to return a general verdict of not guilty. We consider what is there said as a proper exposition of the law. The slightest examination will convince every one, that if the jury, and not the court, are the proper expounders of the law, there could properly be no revision of a verdict on this ground, either by the judge trying the cause, by awarding a new trial, or by an appellate court upon the ground of misdirection. If the jury are the judges of what is, and what is not law, why call on us as a court of errors, to revise the action of the circuit court upon a point of law. We cannot better state our opinion upon -this question, than by quoting the opinion of one of our soundest jurists. “ The jury, says Judge Story, are no more judges of the law in a capital, or otherwise criminal offence, upon the plea of not guilty, than they are in every civil case tried on the general issue. In each of these cases their verdict, when general, is necessarily compounded ©flaw and of fact, <aud includes both. In each case they must necessarily determine the law, as well as the fact. In each case they have the physical power to disregard the law as laid down by the court. But I deny that in any case, civil or criminal, they have the moral right to decide the law'according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. This is the right of every citizen, and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would he, not only that the law itself would be most uncertain, from the different views which different juries might take of it, but in case of error there would be no remedy or redress by the injured party, for the court would have mo right to review the law as -it:had been settled by the jury.” [U. States v. Battiste, 2 Sumner, 240.]

We'are too-apt, in speculating on a subject like this, to consider, that courts will always be prone to settle the law rigidly against crime, or that juries must always lean towards a lax construction of criminal law, without reflecting that prejudice and passion may sometimes operate with fearful violence in the jury box against the particular individual. Our law has wisely provided therfore for the protection of all just rights, that the courts shall expound it, whilst on the other-hand, 'by confiding to juries the power of returning a general verdict, it is rendered almost impossible the citizen can ever ‘be injured by the tyranny or oppression of the judge. Beyond this, even in providing for a revision of the cause, upon exceptions tendered, and by writ of error, the legislature has placed its citizens in security from the mistakes which possibly may occur in the rulings of the judge at the trial. We are satisfied the law was correctly expounded by the circuit judge.

With respect to the motion of the prisoner to examine individual grand jurors, as to their opinions of his guilt, or in-nocency, before swearing them on the panel, the decision in Clarissa v. The State, 11 Ala. R. 57, is conclusive that it was properly refused.

Having now examined all’ the points raised in this court against the proceeding in the court below, we have only to add our judgment, that there is no error in the record.

Affirmed.