Mann v. State , 134 Ala. 1 ( 1901 )

MoCLELLAN, C. J.

It ivas within the unrevisable discretion of the city court to allow the solicitor to interrogate the venireman George Stewart as shown by the record.

It is difficult to conceive upon what ground an objection to the opening statement of the solicitor as to- what he expects the evidence will show can be predicated. Issue cannot be taken upon the existence of his expectations in that regard: It cannot be asserted in any way that we know of either that he does not expect this or that testimony to be forthcoming, or that, though he believes this or that testimony to be in existence, he does not expect the court will receive it in evidence. He is not confined to forshadowing testimony which he knows the court will receive, for he cannot thus forestall or be required to anticipate the court’s judgment, but-he may in this way state to the jury the case, as he proposes and expects to present it to them on the evidence. At most these preliminary statements, when resorted to in our practice — and whether resorted to at all or not in any case is within the election of counsel — are tentative and intend (M to give the jmry a general grasp of the case that they may be the better able tx> understand and apply the facts as they are developed in the course of the trial; and they constitute no evidence of the facts nor in any sense take the place of evidence. That part of the statement of the solicitor in this ca.se to which objection was made, moreover, would be unobjectionable even were it conceded that such statements are open to challenge in this way. The facts which the solicitor stated he expected to prove were in rebuttal of the line of defense set forth in the preliminary statement of defendant’s counsel, and evidence of them was actually and properly received on the trial. The court committed no error in declining to “rule out” the solicitor’s statement, which the judge did in tarns, but at the same time said that he would instruct the jury to “pay no attention to statements of counsel.” It is proper to remark that this declaration was too favorable: to defendant. The presiding judge doubtless intended to instruct the jury to pay no attention to the statements as evidence, for, of course, it was their duty to be attentive to' these statements as statements of counsel going to show what they expected the evidence to be.

There is no merit in the exception reserved on the redirect examination of the witness Inge. The only objection to the question was that the evidence called for was not in rebuttal. This objection — as also that the question was leading which is urged in argument, but not made at the time — was addressed to the discretion of the trial court.

The witnes Hyde, the trial court, thought — and doubtless correctly — was an unwilling witness The judge was well within the range of his discretion, therefore, in allowing the solicitor to lead him; and of course the judge had the right to state the ground upon which he allowed leading questions to be propounded to him, viz., that in his opinion the witness was an unwilling witness. All the questions asked this witness relative to a former trouble between the defendant and the deceased seem to have been necessary to get oiit of him what the former had said in the nature of threats, against the latter.

We are unable to see that the court erred in allowing the solicitor to ask the witness McAuley, solely for the purpose.' of refreshing the latter’s memory, whether he had not testified to certain facts 071 the preliminary trial of the defendant. This is a recognized and often resorted to mode of refreshi7ig the memory of witnesses.

It is entirely clear from the bill of exceptions that the defense drew from the witness Wolfe every fact within his knowledge having a7iy pertinent and legal bearing-on the case; and it is of no consequence that the: court did not allow hi7n to answer questions as to- how a certain conversation between him and Hickson, the deceased, “ca7ne up,” “what introduced this conversation.” etc., etc.; or to testify that Hickson told hi7n that it was a mistake about Mann’s shooting his, Mann’s, wife, etc. etc.

It has been decided several times recently by this court that the failure of a party to introduce a witness affords no ground for any argument or inference unfavorable to such party, and the fact that the witness has been subpoenaed by that party and is in attendance can malee no difference in this connection. I-Ience, it Avas wholly immaterial in this case AA'hether the Avitness Tuttle, who Avas in attendance but aaNo was not introduced by the State, had been subpoenaed for the prosecution or mot.

It will suffice to say in approval of the court’s action upon the question to the Avitness Tuttle: “How long a time elapsed between the demanding of an apology and the firing of the first shot — how many minutes?” that it assumes that .minutes elapsed, AA'lien it is probable on the AA'hole evidence that less than one minute elapsed.

There Avas abundant evidence in the case going to shoAV that Hickson was a strong, powerful man physically and that Mann Avas Aveak and delicate and this was not questioned. There Avas, therefore, neither occasion nor excuse for going into an inquiry as to Iioav it came to pass thaiti Mann was not robust and strenuous, as for instance that he had led a sedentary life, that he had not taken much out-door exercise, and that his A\rork was not such as to harden his muscles, that he had lung trouble, etc., etc.

The length of time Mann had lived in Mobile, the place of his residence before he came to Mobile, the length of time AA'hieh elapsed-after he came to Mobile before he met Hickson and the place of his marriage in Mobile Avere. facts of no pertinency to any issue in the case. The same* is true in respect of the proposed testimony of Mann that in consequence of remarks derogatory of his character having come to him, he said something to his wife “about going Avith Hickson and his wife, or staying away from them, or something of that character,” etc., etc.; but all this Avas brought out in the further examination of the defendant as a Avitness in his own behalf.

Tlie questions by tlie solicitor to- the defendant as a Avitness on cross-examination as to Avhy he thought the remark, “Lend me a dollar,” ivas addressed to him, and AA'hether he didn’t go for his pistol Avith the purpose of getting it and coming back and making Dickson apologize, etc., etc., Avere proper under repeated decisions of this court.

It Avas not for the defendant to testify to his opinion or conclusion that there Avas no “reasonable method of escape Avithout exposing himself to great danger, taking all the surrounding circumstances into' consideration,” that as “matter of fact there Avas not any safe method by Avhicli be could have retreated Avithout exposing himself to being shot at by Dickson,” “that under existing facts, belieilng, as he had said he did believe, that Dickson Avas armed, he could not have escaped Avithout increasing his danger,” and that “if he had turned his hack Dickson would have had an opportunity to shoot him.” These Avere issues to he tried by the jury and not for the determination of Die defendant for them: It Avas their province, and not his as a Avitness, to draw conclusions from the facts in this connection.

The distance that Mann had “retreated” had been testified to several times by him, and there was neither injury nor error in the ruling of the court on the question, “how far altogether had you retreated at that time,” asked the defendant on the redirect examination of him as a Avitness, if indeed the court made any ruling upon it.

The. question, “YVwhen you, picked upi your pistol off the ground and moved around that way, had that difficulty ended or Avas it still continuing?” called for an opinion or conclusion of the Avitness, Mann, and Avas properly disalloAved. He immediately after stated the facts in this connection, or wliat. he testified to he the facts.

The, testimony of the Avitness W. S. Anderson to the effect than Mann, itlie defendant, had testified on his preliminary trial that AAdien he, defendant, just before the shooting, demanded of Dickson that he apologize to him, the apology minimi Avas for the “insults Dickson had given him in his office at the Custom House, for tlie insulting language Dickson had applied to him in speaking to a negro and for the insults Dickson had given him at Monroe Park in hacking him with a pistol,” tended to show malice, preaneditaton and formed design on the part of the defendant, fault in following up the difficulty at Monroe Park and that he shot Dickson, not in self-defense, but in redress of these insnlts for wffiich Dickson failed to apologize on his demand; and was, therefore, admissible. If it had not been in rebuttal, it would have been none the less within the discretion of the court to receive it; but it ivas in rebuttal of that tendency of defendant’s own testimony to show that in making the demand for an apology he had reference to the insult which Dickson had on that occasion put on him, and not previous ones.

The further testimony of this witness as to what Mann had testified on tire preliminary hearing as to his making an effort to empty his pistol in the air to keep. Dickson from using the weapon on him went in rebuttal of Mann’s testimony on this trial, and the theory of the defense, that he acted all along on the belief that Dickson had a pistol, and to. support the theory of the prosecution that at the time of the fatal shot Mann knew that Dickson was unarmed, and for these purposes was competent.

It is not conceivable that the introduction in evidence by the State of -the diagram of his office at tire Custom House made by the defendant wffiile he was being examined as a witness could hae prejudiced the defendant; and wdiether it did or not, the diagram was in the nature of an admission freely made by him, and competent evidence on the trial.

The defendant as a witness had denied in effect “that Dickson said at the Custom House that he did not want Mann to marry his sister on account of their short acquaintance, and because of his reputation for drinking,” and there could be no' legal objection to the solicitor stating to' the jury the fact of such denial.

To charge a jury that a man has tire right to kill in self-defense without instructing them as to the constituents of self-defense is to submit to' them a question of law, and such a charge should not be given. This was ruled in Miller v. State, 107 Ala. 40, and has been often reaffirmed. Charges 8, 10, 20, 33 and 41 refused to the defendant each had this infirmity.

Charge 8 ivas bad for the further reason that it would have authorized an acquittal on. the ground of self-defense, though the jury might have found that Mann could have retreated without increasing his peril or even in absolute safety; and upon the yet further consideration, apart from others, that a probable belief that a necessity to kill exists is not sufficient. The actor must believe that the danger is imminent and actual to life or member, and the facts must be such as import that such danger is real, that it must be real or it must reasonably appear so.

Charge 16 is bad for the further reasons that its first sentence is an argument; that it is misleading in confining the jury to the circumstances of the killing, when there ivas evidence; of a previous difficulty and of antecedent threats; that it pretermits the doctrine of retreat.; that it requires an acquittal unless the jury should believe to a moral certainty that the defendant provoked the difficulty, Avhen there was abundant justification for a verdict of guilty Avhether he prooked the difficulty or not, and perhaps for other1 reasons.

Charge 26 has at least one infirmity other than that common to it and charges 8, 16, 33 and 41: The defendant icas by no means entitled to an acquittal on his own (>account of the transaction

Charge 29 pretermits all reference to the duty of retreat where retreat Avill not increase the peril, as does also' charge 30.

Charge 38 is' in the language of a charge that Avas at one time approved by this court, but that decision has been departed from, and charges in this language have recently been several times held bad.

Charge 41 Avas open to the further objection that it authorized an acquittal on a reasonable doubt engendered by the testimony of the defendant, A\dien such doubt may have, been entirely allayed and removed by the other e-Addence in the case. Moreover, the charge is in its first proposition a mere argument.

Charges 17 and 18 were properly refused. The jury was under no duty to weigh the evidence for the State and for the defense separately and then the orne against the other and find which was “the heavier,” nor to consider the evidence for the State: separately and finding that it showed the defendant guilty, then to consider the evidence for the defense separately, and finding that it equally showed the defendant not guilty, to acquit him; but their whole duty was to consider all the evidence before them and upon it say whether or not the defendant wa.s guilty beyond a reasonable doubt. , The effect of those charges would have been only -to inject confusing and improper issues into the case. Charges 46 and 47 are of the same character; and they as well as 17 and 18, when referred to in the evidence, are: each bad upon the further consideration that whatever in a sense may have been the heftiness or strength of the evidence “for the defendant” or “of the defendant” and however thoroughly the jury hight have been convinced of its truth, it was yet open to them to find the defendant guilty; his own testimony affording the "jury abundant ground to find that he, at one time, retired from the difficulty for the purpose of arming himself and, having accomplished this, voluntarily re-entered upon it.

Charges 51, (A.) and (B.) have many faults, but it will suffice to advert to their pretermission of all reference to the doctrine of retreat.

Affirmed.