Jordan v. State , 79 Ala. 9 ( 1885 )

CLOPTON, J.

It may be conceded that the threat made by defendant, against “any body who hits Mason Taylor,” had immediate reference to Raoul, between whom and Taylor there were, at the time, words and a difficulty ; and was prima facie inadmissible, under the general rule, that a threat to kill or injure one person is not admissible in evidence under an indictment charging the murder of another person. The threat, however, was not directed against Raoul by name, but had a general reference to any person who did the designated act. If evidence prima, faeie irrelevant, becomes relevant during the progress of the trial, its admission is not an error, which will work a reversal. The threat became relevant, on the introduction of testimony that deceased shortly thereafter struck Taylor, which resulted in bringing on the difficulty between the accused and the deceased. Whether the deceased came within the scope of the threat, and its probative force, were questions for the determination of the jury.—Ford v. State, 71 Ala. 385; Harrison v. State, 75 Ala. 5; Whar. Crim. Ev., § 756.

If there was error in admitting the dying declarations proved by the witness, Johnson, certainly the subsequent exclusion of the evidence was not erroneous. But, in such case, the court should endeavor, as far as practicable, to remove any unfavorable and erroneous impression which such evidence may have made, and should clearly and explicitly instruct the jury to disregard it altogether.—Carlisle v. Hunley, 15 Ala. 623.

The fact of a previous difficulty between the accused and a witness called by the prosecution, is admissible, as tending to show ill-will, bias, or prejudice, and to aid the jury in considering the weight to which the testimony of such witness is entitled ; but it is not permissible to inquire into the cause of such difficulty. Such inquiry raises collateral issues, which are calculated to confuse the minds of the jury, and to divert their consideration from the real issue.

By one of the alternative propositions asserted in the first charge given at the request of the prosecution, the jury were substantially instructed, that the defendant Handy Jordan, if he cut the deceased with a knife, with the intent to kill, is guilty of murder. The proposition is, that the mere fact of cutting with the intent to kill constitutes murder, irrespective of any community of purpose, or of a malicious intent, or of the character and effect of the wound, or of any extenuating circumstances under which the defendant may have participated. It is conceded that, if Jule was in the wrong by bringing on the difficulty, the guilt or innocence of Handy depends on the same principles as if no relationship existed. Whether Handy is guilty of murder, depends either on the principle, that where two or more persons preconcert to commit a felony, or to do an act unlawful in itself, each is responsible for the acts of any of the others, done in the prosecution of the common design ; or, if there be no community of purpose, on the rule, that where a third person voluntarily takes part in a pending difficulty, under circumstances which do not'excuse, and kills, his guilt will be determined on the same principles as the guilt of the original parties. In the one case, community of purpose is essential to the liability of one of the accused for the act of the other. The actual perpetrator alone is responsible for an act .having no connection with a common purpose. In the other case, the offense of Iiandy is separate and independent of that of Jule, the guilt of the former not being .dependent upon the guilt of the latter. In such case, it is requisite that the wound inflicted by Handy shall have been mortal, the death of the deceased only being accelerated by the subsequent act of Jule. Without a preconcert to kill the deceased, or to do him great bodily harm, or unless the wound inflicted with the knife was fatal, or materially contributed to produce death, Iiandy can not be guilty of murder or manslaughter, unless he was present for the purpose of aiding or abetting Jule.

The record fails to disclose any evidence tending to showT a preconcert, or the character of the wound inflicted by iiandy ; but, conceding there is sufficient evidence to present either or both of these aspects of the case, the charge excludes from the consideration of the jury elements of the offense essential under the circumstances; and makes Handy guilty of murder, though there was no preconcert, no malicious intent, and the cutting with the knife did not produce death, nor materially contribute thereto, and though the deceased was killed by Jule after the cutting.—Frank v. State, 27 Ala. 37; Tidwell v. State, 70 Ala. 33.

The third charge given at the request of the prosecution is, as to Handy, obnoxious to the same objections. It is erroneous as to Jule, in withdrawing from the consideration of the jury, on the question of malice, the circumstances of the killing, and authorizing its presumption from the character of 'the weapon used, without reference to the other circumstances.

As the defendants can not be convicted, on proper defense being made, of murder in the first degree on another trial, it is unnecessary to consider the charge relating to that offense.

Reversed and remanded.