Williams v. State , 83 Ala. 16 ( 1887 )

STONE, C. J.-

— Since the trial of this case in the Circuit Court, the principles declared in McManus v. The State, 36 Ala. 285, have been explained and somewhat modified. Harrington v. State, ante, p. 9. The case last mentioned presented the inquiry in respect to the instrumentality by which the homicide was brought about, somewhat like the act from which death seems to have resulted in this case. In such case, death would not ordinarily ensue from the force employed. We quoted without disapproval what was said by Tilghman, 0. J. in Com. v. Gable, 7 Serg. & R. 423, as follows: “I take it that evidence of a positive intention to kin, is not necessary to constitute the crime of voluntary manslaughter. It is sufficient if there be such acts of violence as may be expected to produce great bodily harm. On the contrary, involuntary manslaughter is where it plainly appears that neither death nor great bodily harm was intended, but death is accidently caused by some unlawful act, or an act strictly lawful in itself, but done in an unlawful manner, and without due caution.” In the same case — Harrington’s — this court said: “Whether the killing is intentional, express or presumed, or unintentional, is the particular characteristic which distinguishes voluntary from involuntary manslaughter — whether death may be the probable consequence of the act, as contradistinguished from accident or misadventure. Voluntary, as the antithesis of involuntary, is the distinguishing quality; not intentional, as amounting to a specific intention to kill. Intention to do great bodily harm is sufficient.....In order to constitute manslaughter in the first degree, there must be either a positive intention to kill, or an act of violence from which, ordinarily, in the usual course of events, death or great bodily injury may be a consequence.” We have reproduced the identical language employed in Harrington’s case, that in the further trial of this cause its principles may be observed.

In Mitchell v. State, 60 Ala. 26, we declined to apply the doctrine of error without injury to questions arising on prosecutions for crime, and we have adhered to it since. We need give no reasons for this ruling, farther than to say, that we have no rule for measuring the amount of influence an erroneous instruction may exert in the deliberations of the pry-

In the charges set down as asked by defendant, and refused by the court, we suppose three of them, Nos. 2, 3 and 4, are improperly placed in that class. They are not such charges as we can suppose defendant would have asked, and certainly he was not injured by their refusal. If these charges were asked by the State, given, and separately excepted to, Nos. 3 and 4 are faulty, and No. 2 is not full enough. — Hadley v. State, 55 Ala. 31 ; Harrington’s case, supra ; Fallin v. State, ante, p. 5.

Charges 1, 5, 6, 8, asked by defendant, each ignores important elements of law and fact; of law, in that they are silent as to the duty of retreat, if it can be done without increase of peril; and of fact, because each pretermits all mention of the fact, about which there appears to have been no controversy, that the parties left the house with a view, and under an implied agreement, to engage in a combat outside of the house. This, if true, would cut off the right of com■plete justification.

Charge 7 is not full enough,' partly because of material omissions, noted in commenting on charges 1, 5, 6, 8, and partly for other imperfections. — DeArman v. State, 71 Ala. 351.

Charge 9 ought to have been given.

Charge 2, given at the instance of Lbe State, is faulty, when interpreted in the- light of the testimony before the jury. If the words, “or mitigation,” or “extenuation” had been added, it would have been free from error. — Fallin v. State, supra. Charge 6 was improperly given. A kiliiug, under the facts hypothesized, would not necessarily be murder in the first degree. — Mitchell v. State, 60 Ala. 26.

Beversed and remanded.