Dupree v. State , 33 Ala. 380 ( 1859 )

A. J. 'WALKER, O. J.—

The threats, proved by the witnesses Williams and Boyd, were made but a short time before the commission of the homicide. They were communicated to the prisoner before the homicide, by the persons who heard them uttered. They were indicative of an angry and revengeful spirit, and of a determination to do violence to the prisoner’s person. Such threats were admissible in this case, and the court erred in excluding them.—Powell v. The State, 19 Ala. 577; Carroll v. The State, 23 Ala. 28; Howell v. The State, 5 Geo. 48; Monroe v. The State, 5 Geo. 85; The State v. Zellers, 2 Hals. 280; Shorter v. The People, 3 Coms. 193; Am. Law of Homicide, 216; Campbell v. The People, 16 Ill. 17; Cornelius v. Commonwealth, 15 B. Monroe, 539.

[2.] The facts proved as to the conduct of the deceased, some weeks before, towards Breedlove, were irrelevant to the issue in this case. They pertained to a distinct and independent transaction, having no connection, which we perceive, with this case, and were properly excluded.

[3.] The children of Clara were incompetent witnesses. Their father, maternal grandfather, and great-grandfather were white men. Their great-grandmother was the child of a mulatto, by a negress. The great-grandfather is the first ancestor of pure white blood, to whom the genealogy of the witnesses can be traced. Beyond the great-grand ancestors, the ancestors of both sexes were either negroes, or of mixed blood. If the descent of the witnesses is traced downward from their great-grand-parents, one of whom was white, their grand-parents are of the first generation, their parents of the second, and they themselves of the third generation. It follows, that if in determining the competency of the witnesses, we are to reckon from the ancestors, one of whom was white, the witnesses proposed in this case are in the third generation.

The section of the Code pertaining to this question is as follows: “Negroes, mulattoes, Indians, and all persons of mixed blood descended from negro or Indian ancestors, to the third generation inclusive, though one ancestor of each generation may have been a white person, whether bond or free, must not be witnesses in any cause, civil or criminal, except for or against each other.”—Code, § 2276. This statute must be understood as requiring a computation of the generations from ancestors one of whom is purely white; otherwise, it might be that persons of mixed blood, by intermarriage among themselves, might produce descendants, competent to testify against white men, without any admixture of additional white blood in • any generation. We hold, that there must be one white ancestor, of each generation, for three generations, before a competency to testify can be established; and the proposed witnesses, being of the third generation, were incompetent to testify, and there was no error in rejecting them as witnesses.

[4.] The statement of the testimony given in by the widow of the deceased, before the coroner on his inquest, was not admissible. She was living. The testimony was not that of a deceased witness. No reason is suggested for the admissibility of the evidence, save that the witness had emigrated to Georgia. There is no rule, which would justify the admission of such testimony on that ground.

[5.] So, also, the proof that the deceased was a convict, escaped from the Georgia penitentiary, was inadmissible. Particular acts of misconduct on the part of the deceased, and offenses against the law committed by him, and not connected with this case, were inadmissible. For a still stronger reason, parol evidence of his having been a penitentiary convict was inadmissible. It is not allowable to go into proof of particular acts, unconnected with the ease, to show the character of the deceased.—State v. Nugent, 18 Ala. 521; Pritchett v. State, 22 Ala. 89; Franklin v. State, 29 Ala. 14.

[6.] The character of the prisoner for peaceful disposition and habits was competent proof for him.—Felix v. The State, 18 Ala. 720.

[7.] The witnesses, by whom it was proposed to show the character of the accused, had known him for eight or ten years, and were acquainted with his character. This was sufficient to qualify them to testify as to his character, notwithstanding they may have resided more than twenty miles from him. Eesidence in the immediate vicinity of the person, whose character is the subject of investigation, is not an indispensable qualification of a witness to testify as to the character. Such a remoteness of residence would not prove that the witness did not know wbat the character was, and therefore would not disqualify him to testify on the subject.—Hadjo v. Gooden, 18 Ala. 718; Martin v. Martin, 25 Ala. 201.

[8.] There was no error, either in the refusal of the court to give the charges asked, without a qualification, or in the qualification of them, as stated in the bill of exceptions.—Oliver v. The State, 17 Ala. 587; Harrison v. The State, 24 Ala. 67; Noles v. The State, 26 Ala. 31. The charges asked might have misled the jury, by making the impression upon them that the plea of self-defens was sustained, although there was not a reasonable belief of a present necessity to strike for his own protection. This court will never reverse for the refusal of a charge, the tendency of which is to mislead the jury.

The judgment of the court below is reversed, and the cause remanded.