Ragsdale v. State , 134 Ala. 24 ( 1901 )

HARALSON, -T.

Eleven men having been selected as jurors, cue Pippen was called and asked if he had “a fixed orvinion as to the guilt or innocence of the defendant vdnVb von Id bias his verdict?” a.nd be answered that he had. Being examined further bv the court, he stated that he was not present at the difficulty in which the deceased was killed, nor did he know anything about the facts except, from hearsay, and had only-heard a few people speak of it. In answer to the further question by the court,, “Whether the. opinion he had would affect his verdict, or would he he governed entirely by the evidence?”, he replied, “I would he governed entirely by the evidence and what I have heard would not affect mv verdict.” The court then asked him, “Have you a fixed opinion as to the guilt or innocence of defendant that would bias your verdict?”, to> which he replied, “No Sir, I will he governed entirely by the evidence in the case.”

It often occurs, when answering on their voir dire, as t,0' their qualifications as jurors, or whether subject to chalí erige for cause, that persons do not understand the meaning of the ouestions propounded, and are mistaken in the answers they reolv. One may sav. that lie has not been a, resident householder or freeholder of the county for the last- twelve months: that he thinks a. conviction should not be had on circumstantial evidence, and that he has a. fixed opinion as to the* guilt or innocence of the defendant, which would bias his verdict- and is honest.lv mistaken in his replies, as is often shown' by his further examination.

The answers of the iuror to the nuestions propounded hr the court, fully show that he did not intend to sav that he had a. fixed and discmalifying opinion as to the guilt or innocence of the accused, for he stated, that hp only knew of the ease from hearsay; that he would he governed entirely by the evidence; that what he had heard would not influence his verdict, and finally he stated, that he had no. fixed opinion that would bias his verdict. We think that under our former ruli-no-s. the court did not., as for the objection raised to his comnetenov, err in 1mlding him to he competent. Carson v. State. 50 Ala. 134; Long v. State, 86 Ala. 37; Hammil v. State, 90 Ala. 577; Arp v. State, 97 Ala. 5; Cochill v. Kennedy, 119 Ala. 641, 654.

2. The witness for defendant. Tliad Gibson, was indicted iointlv with the defendant, for this homicide, and there was evidence tending.to- show his complicity ins it. He had testified that he went with the defendant to the place where, and was present when, defendant slew the deceased; and he had his pistol in his holster or belt, but did not draw it; that he had carried his pistol that way for over a. year, and it was his habit, to carry it wherever he went, for some time prior to' the shooting.

The. defendant offered to prove hv this witness, that about eighteen months before the killing, one Thomas Buntin was murdered in the county, a few miles from where the witness lived; that witness had taken an active part in apprehending the slayer of Buntin, and had been, wanted that threats had been made against his life, and that since said warning he had always carried his pistol, for defensive purposes, buckled around him. in a. scabbard, and that Aims the reason he had it on the evening that deceased Avas killed. This evidence, on objection by the State, to it for illegality, irrelevancy and i«competency, the. court, would not allow. The1 defendant then asked the Avitness the fol-1 owing questions: “Had you not! been carrying your nistol in a. scabbard in this maimer since Buntin Avas killed?” “Had you not been Avarned since Buntin Avas murdered that your life Avas in danger by reason of the a.ctive part you had taken in apprehending the murderer of Buntin, and was not that the sole reason that you had been in the habit of carrying a pistol in this manner?” and “Were you that CAnning carrying your pistol in its scabbard as Avas your habit, after you receiAud tlie Avarning after the Buntin murder?” Each of the«e questions AAras properly disalloAved. The fact that Gibson Avas armed on the occasion and Acore his pistol unconcealed in a belt strapped around his waist, Avas brought out by defendant on his cross-examination of tlm state’s Avitness, Pippen, and the court allowed the AA’itness to state, that on the evening of the killing, he. AAras not carrying the pistol for the purpose of having a difficulty Avith either of the. Hollingsworths,. — the deceased and his brother, Glande,- — nor AAras he carrying it for the purpose of assisting the defendant in any difficulty Avith theinb Aside from the objection, that the question propounded, called for the private and uncommunicated intentions of the Avitness in wearing his weapon, the allowance of the evidence would have been, to go outside, the real issues in the- case and to broaden them, by going into- the various reasons why the. witness carried a pistol. The: defendant had received the benefit of- the proof, if that were important, that the witness wore the weapon unconcealed, and that he teas not thus armed for the purpose of engaging in1 a difficulty with the Hollingsworths, or of aiding the defendant. If entitled to- that much, there was no- error in not allowing him to- go into the transaction of the Bun-tin homicide.

3. The. defendant sought to prove; by himself as a witness, that o-n Thursday before the killing occurred, deceased threatened his life; that he immediately swore out a peace warrant before a justice of the peace,, against, him; and, by other 'witnesses, that they had heard deceased, prior to- the day of the killing, threaten to take the life of defendant, which evidence the court refused to- allow.

The law as settled by this court is, “That no- threats previously made- by the deceased, whether communicated to- the defendant or not communicated, are; admissible in trials for homicide, unless it appears- from the testimony that, at the time of the killing, the deceased had sought a conflict with the accused, or was malting some demonstration, or overt act o-f attack, towards the accomplishment or perpetration of such threats. * * * In other words, the circumstances in evidence must properly raise a case of selfylefense,” (Roberts v. State, 68 Ala 164; Green v. State, 69 Ala. 7); that where the defandant is shown to have been the aggressor, threats previously-made by the deceased, against defendant, cannot, excuse or extenuate his assault, and that parties cannot, under the pretext of. self-defense, bring on a difficulty, and shield themselves by proof of previous threats (Burke v. State, 71 Ala. 377). “He who provokes a personal rencounter, in any case, thereby disables himself from relying on the plea of self-defense in iustification of a blow he struck during the rencounter.” — Scoggins v. State, 120 Ala. 369, and authorities were cited.

The evidence on the part of the State, as well as that by the defendant, shows without conflict, that defendant’was the aggressor1 and brought about the rencounter in which he slew the deceased. The proposed proof about threats of deceased, a.nd the. peace warrant he had sued out against him was, therefore, irrelevant and inadmissible, and the court did not err in disallowing it. Nor was there error in not allowing defendant, as a witness for himself, against the State's objection for illegality, irrelevancy and immateriality, to answer the question, “Whether or not you were carrying your pistol after Bert Hollingsworth threatened to take your life at Eastman’s Mill?” — which was some two. or three days before the deceased was. killed. That fact, if true, in no way justified the fatal assault on the deceased.

4. The court was requested by defendant to give its general charge in writing, which it did. This charge, as to the law of the case, is a substantial copy of the charge of the same judge in the case of Green v. State, 98 Ala. 14, and which was there declared to be correct. The defendant excepted to' this charge as a whole. This exception could not be sustained, unless the entire charge, was erroneous, which is not the case.

The venue of the crime was fully proved, without conflict, and is undisputed, and no. instruction was given, refused or requested, as to the same. “Without a decision by the circuit court, made the subject of an exception and involving an inquiry into the sufficiency of the evidence, this court will not interfere.” — Hubbard v. State, 72 Ala. 164; Clarke v. State, 78 Ala. 477. Even a charge given at the request of the State, which ignores proof of venue, fully established, is not erroneous on that account. — Smith v. State, 118 Ala. 118. It is only when there has been no proof of venue, that a charge which ignores venue is erroneous. Cases cited on brief of counsel for defendant appear to be of that class.

The defendant excepted “separately and severally to each portion of said written charge that has been marked with brackets in pencil on the margin of said original charge,” and “to' each portion or’ parti of said written charge which was marked, by quotaion marks in pencil on the margin and in the body of said written charge.”

This charge as set out in the transcript contains no brackets or quotation marks, to show the parts excepted to by defendant. Attached to the transcript is what purports to be a. paper-certified to this court by the clerk of the circuit court by order of that court, as the original charge. In it, on inspection, we find some lines on margin of the paper, which are not brackets, and we fail to find quotation marks in it, such as to indicate certainly, in either case, any part of the charge to which exceptions were reserved. But, even if specified portions of the charge were, included, within brackets or quotation marks, we could not look to it for the purposes of ascertaining exceptions that may have been reserved, to any part or parts of it. We are shut úp, for such purposes, to the charge as copied in the transcript.

It is objected to this charge as a whole, that it fails to instruct as to manslaughter in. the second degree. This objection is unavailing. There was entire absence of evidence tending to show that the crime was manslaughter in the second degree, but all the evidence without conflict or dispute, showed that the killing by defendant was intentional, and his effort in the case is to justify it on the score of self-defense. In such case, the court was under no duty, and indeed it would have been improper, to charge the jury a,s to involuntary manslaughter. — Compton v. State, 110 Ala. 35; Person v. State, 99 Ala. 153; DeArman v. State, 71 Ala. 351.

Nor was there error, of which defendant can complain, in that part of the general charge as to the burden of proof, which stated, that “In this case, the killing is not denied, nor is it denied that it was done intentionally with a deadly weapon, and the law puts upon the defendant the burden of rebutting the presumption of malice, unless the facts and circumstances of the killing rebut this presumption. (In this case, the burden is upon the defendant to reasonably satisfy your minds that he acted in self-defense, unless the evidence which proves the homicide, proves also the excuse or justification.) ”

The latter part of this charge, which for convenient reference we have placed within parentheses, according to our later adjudications is subject to the vice of placing too great a burden on defendant in establishing' a plea of self-defense. A defendant is required to do no more for his acquittal, than raise a reasonable doubt of his guilt. — Hinson v. State, 112 Ala. 41, 46. But, this was error without injury, since the evidence shows without conflict that the defendant was the aggressor and cannot set, up the plea of self-defense. Scoggins v. State, supra.

5. The charges requested by and given for: the State, numbered 1, 2 and 3, respectively, were, under the evidence in. thej case, free from error.

The defendant requested 59 written charges, 54 of which were given and 5 refused. Those given cover every phase of the case, and were as favorable to defendant as he could' require, and, in some instances, more so. Those marked, respectively, 9, 11, 25, 30 and 31, were bad and properly refused.

Let. the judgment, below be affirmed