Lang v. State , 84 Ala. 1 ( 1887 )

CLOPTON, J.

— As a general rule in cases of homicide, evidence of the bad character of the deceased for turbulence and violence is not admissible, unless it tends to qualify, or explain the conduct of the deceased, or to illustrate the motive or intent of the accused in committing the homicide— when it' may be said to constitute a part of the res gestee. The character of the deceased, however rash and bloodthirsty, furnishes, per se, no excuse for taking his life. To render such evidence competent and relevant, the conduct of the deceased must be of such nature, that its tendency, under the circumstances and as illustrated by his character, is calculated to create a reasonable apprehension of great bodily bwm. The purpose of such evidence is to show the honesty of the accused’s belief of imminent peril. — Franklin v. State, 29 Ala. 14; Pritchett v. State, 22 Ala. 39; Storey v. State, 71 Ala. 329; DeArman v. State, 71 Ala. 357. The deceased, at the time the fatal blow was struck, was making no demonstration of violence against the defendant, spoke no words, and did no act, which could tend, even remotely, to produce in the mind of the defendant any apprehension of harm. Under the circumstances, the evidence of the deceased’s character for turbulence and violence was not admissible.

The credibility of the witnesses, who may prove confessions, and of the confessions themselves, are legitimate subjects of inquiry, and may be impeached in any authorized mode. Though the defendant may have confessed the crime, he may show that the offense with which he is charged was not in fact committed, or that he was not the guilty agent. These are the immediate issues to be tried, and any evidence is pertinent, which properly tends to prove or disprove them, and to elucidate the main inqury. But confessions of the specific offense are distinguishable from admissions and declarations of incidental and collateral facts, though they may be made at the same time. An investigation of the truth or falsity of such admissions and declarations would raise collateral inquiries, multiply the issues, and by diverting the minds of the jury from the main inquiry, confuse their deliberations. Had the defendant been allowed to prove, in order to show that his declaration of the cause of his striking the deceased was false, or to impeach the witnesses, who testified to such declarations, that some person other than the deceased struck him with a skillet on a previous occasion, it would have been competent for the prosecution to introduce rebutting and contradictory evidence. An inquiry as to the details of the previous difficulty would have been inaugurated, and the main issue rendered materially dependent upon ascertaining whether the deceased struck the defendant, or whether the defendant had reason to believe that he struck him. The evidence of the witness Patton was properly excluded.

The court, at the request of the solicitor, instructed the jury: “If the defendant, in this county, before the finding of this indictment, purposely killed the deceased by striking him with a base ball bat, after reflection, with a wickedness or depravity of heart toward the deceased, and the killing was determined on beforehand — even a moment before the fatal blow was struck — the defendant is guilty of murder in tbe first degree.” In quoting the charge we have inserted the word heart where “heat” occurs in the record, regarding and treating its use as a mere clerical mistake in copying, which the charge itself corrects. The statute declares, “every homicide perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious and premeditated killing,” is murder in the first degree. In Mitchell v. State, 60 Ala. 26, it is said that to come within the last clause of the statutory definition, “the act must be qualified by each of the named adjectives,” — willful, deliberate, malicious and premeditated — which “may be grouped under the very expressive phrase, formed design.” Purposely hilling is intentional, willful; after reflection is deliberationj with a wi'clcedness or depravity of heart toioards the deceased, is the highest grade of malice; and determining on the hilling beforehand, is premeditation. The statute does not fix any length of time as requisite to deliberation or premeditation. If reflected and determined on before the killing, however brief may be the period, the law concludes a formed design. Com. v. Drum, 58 Penn. St. 9. While, as we have said in other cases, it is much the better practice to use the statutory words in defining the highest degree of murder, which can not be simplified, the foregoing analysis of the charge shows, that its hypothesis contains and sets forth, though in different phraseology, all the statutory elements of murder in the first degree. — Floyd v. State, 82 Ala. 16.

The charge in reference to reasonable doubt asserts correct legal propositions, as settled by several decisions of this court. It may be obnoxious to criticism as being somewhat involved and argumentative, but neither giving nor refusing such charge will cause the reversal of the judgment.' — McLeroy v. State, 77 Ala. 95.

There is no error in the other rulings of the court.

Affirmed.