Stewart v. State , 78 Ala. 436 ( 1885 )

SOMERVILLE, J.

1. The Circuit Court properly excluded the evidence relating to the detailed circumstances of the alleged difficulty between the defendant and J. P. Whorton, who was a kinsman of the deceased, which occurred on the morning of the killing. The State had proved the fact of this difficulty, to show malice. It was irrelevant to prove the details of it, or to show who was the aggressor. — McAnally v. State, 74 Ala. 9; Garrett v. State, 76 Ala. 18.

2. The declarations made by the defendant, a year or more previous to the killing, as to his peaceable intentions for the future, and his indisposition to engage in difficulties, were mere hearsay evidence, and were therefore inadmissible. Martin v. State, 77 Ala. 1.

3. Nor do we see any error in excluding what the deceased said about one hour after the difficulty, as to his being in fault in the matter of striking the defendant. ' This is too remote to be any part of the res gestee, nor is it shown to have been a dying declaration. Neither the State nor the defendant, in a criminal prosecution, can be prejudiced by such eea-parte statements of the deceased, or of a prosecutor. — Sylvester v. State, 71 Ala. 17, 24.

4. It was not competent for the defendant to testify as to his mental status just prior to the difficulty, alleging that he was “in a fright.” It is well settled in this State, whatever the rule may be elsewhere, that witnesses are not permitted to testify to their motive, belief, intention, or state of mind, when secret and uncommunicated. Such mental status, wffien relevant, is a matter of inference to be determined by the jury from the facts in evidence, both in civil and criminal cases. McCormick v. Joseph, 77 Ala. 236; Burke v. State, 71 Ala. 383. The same principle would exclude the defendant’s denial of any purpose to engage in a difficulty with the Whortons, when he went to Summit the morning of the dajr when the killing occurred.

5. We can perceive no valid objection to the practice of the Circuit Court, indulged in this case, of permitting counsel to read to the jury, in the hearing of the court, and as a part of their argument, extracts from the decisions of this court, which are pertinent to the questions' of law and fact involved in the case on trial, and are correct expositions of the law. It- would certainly be proper for the court to allow any principle of law to be read by counsel to a jury, which the court itself could give in charge to them without legal objection. The rule might be state’d in even stronger terms, but the necessities of the case do not require it.

There is nothing in the other objections to the rulings of the court on the evidence. We discover no error in any of them.

6. There can be no doubt of the fact, that a blow in the face with the hand, intentionally inflicted by one person on another, may constitute a provocation adequate to reduce a homicide from murder to manslaughter, even when such killing is perpetrated with a deadly weapon. This, however, necessarily depends upon the varying circumstances of each particular case. Tf the killing is prompted by the sudden heat of passion, excited by the provocation,' being immediately perpetrated on its occurrence, and is not the offspring of malice, express or implied, or of a previously formed design — a term which embraces the idea of deliberative malice — the crime may be manslaughter, but can not be murder, in either the first or second degree. And, on the contrary, if the killing is done from malice, or is executed pursuant to a previously formed design, which necessarily implies malice, it can not be imputed to spring from that sudden heat of passion, which dethrones, or obtains a'mastery over the reason ; and if unlawful, it will, under these circumstances, be murder. A provocation will avail nothing, however, if it is sought for and induced by the act of the defendant, in order to afford him an opportunity to execute his malice. In such a case, he acts from malice, whatever may be the extent of his passion at the moment of the killing.

Under these views, the fifth charge requested by the defendant should have been given, and was improperly refused by the Circuit Court. Taken in connection with the evidence, it announced a correct proposition of law, and was not misleading. The other rulings we need not consider, except to make the following observations, which will be a sufficient guide, in connection with what we have said above, upon another trial.

Whether the defendant acted from the one or the other of these motive powers — from the sudden heat of passion, or from malice or formed design — is a question purely of fact for the jury. They should consider, on the one hand, the nature of the provocation, with its tendency to negative premeditation and malice; the apparent suddenness of the affray, and the other circumstances which tend to show that passion may for the moment have obtained the mastery over reason in the defendant’s mind. On the other hand, they should consider the evidence tending to prove the existence of an old grudge between the combatants, the nature of the weapon used in the killing, and its alleged previous concealment by the defendant before entering upon the fight, if they believe this to be true, with all the other facts which tend to show that, in perpetrating the killing, the defendant acted from malice or formed design, and not from the sudden heat of passion excited by the blow received by him from the hand of the deceased.

If the jury entertain a reasonable doubt as to whether the defendant acted from the one or the other of these motive powers, they should give the benefit of" such doubt to the defendant, so as to reduce the crime to the mitigated or lesser grade.

The judgment is reversed, and the cause remanded. In the meanwhile, let the prisoner be retained in custody, until discharged by due process of law.