Burns v. State , 49 Ala. 370 ( 1873 )

BRICKELL, J.

— The general rule, often announced by the court, is, that a party to a proceeding, civil or criminal, taking a bill of exceptions, must affirmatively show error to his prejudice, or the proceedings will not be disturbed. Eskridge v. The State, 25 Ala. 30; Butler v. The State, 22 Ala. 43. In this case, the State having given in evidence the declarations of the prisoner on his return to the still-house after the shooting, it was his clear right to adduce the whole of what he said at that time, in reference to the unfortunate transaction. 1 Green. Ev. § 218. This rule has been announced by this court so often, and it is so clearly expressed in the text-books, that we are not ready to presume any court has infringed it. The bill of exceptions does not inform us what the prisoner said at the same time, and in the same connection, which the court declined to permit him to give in evidence. Though it may have been part of the same conversation of which the State gave evidence, we cannot say that it had any reference to the killing, or to the circumstances attending the killing; nor can we say that its exclusion did not benefit, rather than prejudice the prisoner. An exception to the admission or rejection of evidence should always disclose the evidence admitted or re- . jected, or a revising court cannot intelligibly pass judgment on it.

2. The prisoner offered to prove exculpatory declarations made by him when he returned to the still-house after the shooting, which the court excluded. The bill of exceptions does not inform us whether these declarations formed part of the conversation of which the State gave evidence, or whether they were made in another and subsequent conversation. Of course, we cannot say that the court erred in rejecting them. It may be proper for us to repeat the rule by which the court should be governed in determining the admissibility of this evidence. The prisoner cannot give in evidence his own declarations, unless they form part of the res gestee; but if the State gives evidence of his confessions, declarations, or admissions, it is his right to lay before the jury all that he said at the time, referring to the killing, and the circumstances attending it. It is the province of the jury to determine the credibility and weight of the declaration or confession. The jury must weigh the whole, rejecting no part unless for some sufficient reason; but they may, in the exercise of their judgment, give more credence to one part than to another, or may deny credence to a part, or to the whole. William v. The State, 39 Ala. 532; Chambers v. The State, 26 Ala. 59; 1 Green. Ev. § 218.

3. It appears from the evidence set out in the bill of exceptions that the killing was at or near a “ still-house ; ’’that the deceased reached the still-house before the prisoner, and, on reaching the house, inquired for the prisoner ; that, being informed the prisoner was not there, he obtained a knife, and sharpened it, and loaded his pistol, declaring that, when the prisoner came, “ he intended to have a settlement with him ; ” that the prisoner rode up about this time, and while he was fastening his horse, the deceased spoke to him, and they walked off together; that the report of a pistol was heard in a short time, and the prisoner returned to the still-house alone, having a wound in his leg, apparently made by a knife, and some scratches on his throat. There was no evidence, so far as disclosed by the bill of exceptions, of the circumstances of the killing, or of the conduct or condition of the parties at the time of the killing. The prisoner offered to prove that the deceased, when starting to the still-house, said that he intended to kill the prisoner, and used these words, “ When you hear from me, you will hear that him or me is dead.” The State objected to the admission of this evidence, and the court sustained the objection, because it did not appear that these declarations, or threats, had been communicated to the prisoner.

The general rule is, that threats of personal violence, made by the deceased against the prisoner, and not communicated, are not admissible in evidence, unless they form part of the res gestee. Powell v. The State, 19 Ala. 577; Carroll v. The State, 23 Ala. 28; Dupree v. The State, 33 Ala. 380. It is impossible to define accurately the declarations which should be treated as parts of the res gestee. The main facts in this case are the killing, and the circumstances attending it. Declarations coincident with these in point of time, whether made by the deceased or by the accused, would certainly be admissible. It is not the point of time at which the declarations were made, so much as their connection with the main fact, that determines the question- of admissibility. Gandy v. Humphries, 35 Ala. 617. If they are contemporaneous with the main fact, connected with it, and elucidate it, or the state of the party’s mind when that is material at the time of the happening of the main fact, they are admissible. Their weight as evidence must be determined by the jury. They are not admissible to palliate or excuse a murder or a killing shown by other evidence to be felonious. They are admissible only to show the mental status of the deceased, and his motive in going to the still-house, and in inviting an interview with the prisoner. If there is no evidence of the facts attending the killing, this evidence may enable the jury to determine who was the aggressor, and may properly generate a doubt of the guilt of the accused. Campbell v. The State, 16 Illinois, 18; People v. Scoggins, 37 Cal. 677. It should have been admitted, and the jury permitted, under proper instructions, to determine its value. Such evidence is of little value, if it is admissible, when the prisoner has provoked the affray, or when it affirmatively appears that the deceased was not in a condition to execute his threat, or was making no effort to do so. Carroll v. The State, 23 Ala. 28.

The declarations or threats, made by the deceased to Hudson and to others, were properly rejected. They do not form part of the res gestee, and are not contemporaneous with it. The threats made to the witness Cassey Speigle, as we construe the bill of exceptions, were made when the deceased was starting to the still-house, on the afternoon of the killing, and were admissible under the facts recited in the bill of exceptions, on the same reasoning on which the declaration of a party leaving home, as to his destination and the objects he has in view, are received. Pitts v. Burroughs, 6 Ala. 733.

4. The charge requested, as to the weight or value of admissions or confessions as evidence, is abstract, so far as the bill of exceptions discloses. It does not appear that any admission or confession of the prisoner was given in evidence, and the court might well have refused, on this ground, to give the charge. The rule settled by this court is, that admissions made by a party to a civil proceeding (and confessions in a criminal case, so far as their weight as evidence is concerned, stand on the same footing), deliberately made, and precisely identified, are often most satisfactory evidence; but that evidence of mere verbal admissions, unsupported by any other evidence, should always be cautiously weighed, because of their liability to be misunderstood, the facility of fabricating them, and the difficulty of disproving them. Wittick v. Keiffer, 31 Ala. 199; Garrett v. Garrett, 29 Ala. 439.

The bill of exceptions does not disclose what was the evidence of the witness Johnson, nor that there was any evidence that he had made contradictory statements, or statements variant from the evidence he gave. The charge asked was not warranted, by any fact disclosed in the bill of exceptions ; and for this, if for no other reason, it was properly refused. The other charges requested were so framed as to have a tendency to mislead the jury, and were properly refused. The charges given wére not excepted to, and are not subject to revision. For the error we have noticed the judgment is reversed, and the cause remanded. The prisoner will remain in custody until discharged by due course of law..