Jackson v. State , 106 Ala. 12 ( 1894 )

McCLELLAN, J.

— Plight, of the accused and that he assumed and was known by a false name at the place to which he fled, Mullin’s Station, Tennessee, were relied on by the State as tending to show guilt. To establish the fact of the assumption by him of a false name, the prosecution was allowed, against his objection, to show by the officer who arrested him at Mullin’s Station that the postmaster at that place and another man told him, the officer, “that defendant went by the name of M. L. Jones, and received letters at the postoffice at Mullin’s Station in the name of M. L. Jones.” This testimony was so clearly the merest hearsay, and the ruling of the court allowing it to go to the jury was so obviously erroneous, that we deem it unnecessary to discuss it.

2. Some witnesses for the defendant having testified that they knew the general character of Steve Johnson, a witness for the State, that it was had, and that from their knowledge of his general character they would not Believe him on oath, the State was allowed, against defendant’s objection, to introduce the testimony of one Hastings to the effect that he knew Steve Johnson, had never heard his character discussed, but from dealings with him it was the opinion of the witness that Steve was worthy of belief, and he would believe him on oath. We do not think that a witness whose general character and character for truth and veracity is thus assailed, can be sustained by evidence of an opinion of him based on the sustaining witness’s individual dealings with him. The inquiry goes to the witness’s reputation, and the conclusion or opinion to be competent must be based upon the reputation in the community of .the witness sought to he impeached. The question is not whether the witness’s conduct in his dealings with one or more of. his neighbors had' been upright and that, of consequence, such persons would believe him on oath ; character is not involved in this latter inquiry at all; and it is character and not conduct — the estimation in which a man is held, and not •what he does — that is under investigation, and character .only can afford a predicate for the opinion of an impeaching or sustaining witness that the witness inquired about is or is not worthy of credit. The testimony of Hastings stated above should, we think, have been excluded.— Sorrelle v. Craig, Admr., 9 Ala. 534, 539 — 41; Holmes State, 88 Ala. 26; Moulton v. State, 88 Ala. 116.

3. Those parts of the court’s general charge to which exceptions were, reserved when read, as they must be, in connection with all that was said upon the subjects to which they relate, are free from error, if indeed they are not so in and of themselves.

4. Charges 1 and 4 given at the instance of the State were bad in that they authorize the jury tó reach a conclusion of guilt upon their belief of certain facts, though they may not have believed them beyond a reasonable doubt. — Carr v. State, 104 Ala. 4; Rhea v. State, 100 Ala. 119 ; Pierson v. State, 99 Ala. 148.

5. There was a tendency of the evidence to show that the defendant, having had an altercation with Ambrose Harris in a crowded room, -went over to a table, got his pistol and, holding it aloft, passed back and forth through the crowd several times looking for said Ambrose, and finally came upon Will Harris, a brother of Ambrose and much resembling him, when, supposing Will to be Ambrose, he shot and killed him. Intended to have reference to this tendency of the evidence, something is said in the court’s general charge and in some of the charges refused to the defendant as to the criminality of one whose blow, intended for and levelled at one man, "falls upon another. All this is outside the case. The fatal blow here was not levelled at Ambrose but at Will Harris, and upon Will Harris it fell. When the defendant fired the mortal shot his aim was upon Will' Harris, and it was Will Harris whom he intended to kill. It is of no consequence that he might not have 'so intended and acted had he known that the man before him was Will and not Ambrose. If this evidence truly presented the case, the defendant is to be adjudged precisely as if Will Harris was the man he sought, and this not upon the theory that he tried to kill Ambrose and Will’s death ensued through misadventure, but because the latter was the man he in fact intentionally killed. The only contrary evidence on this point is that of the defendant himself, going to show that lie knew Will Harris, and intentionally shot him in self-defense. Charges,'therefore, which proceeded upon the idea that death resulted from a blow intended for one and falling by chance upon another, were abstract.

6. Several of the instructions requested by the defendant and refused were to the effect that if the jury believed that the defendant “was not at fault in bringing on the difficulty with Will Harris,” &c. &c.,he should be acquitted. These charges tended to confuse the jury and mislead them to a disregard of the evidence referred to above as to the defendant’s purpose and efforts in respect of Ambrose which he, upon the evidence, for the, State, carried out and visited upon the person of Will. If Will Harris stood to the defendant in the shoes of Ambrose, and the defendant seeking and provoking a difficulty with Ambrose found and shot Will, believing him to be Ambrose, it would be entirely misleading to confine the inquiry as to fault in provoking or encouraging or seeking a difficulty to what transpired at and immediately preceding the homicide between defendant and deceased, as the charges in uuestion in effect do. Moreover, these charges are confusing in referring to the defendant’s seeking a difficulty with Ambrose and not seeking one with Will. He may well have sought a difficulty with the man he killed mistaking him for Ambrose, and yet in a sense have been at no time seeking a difficulty with Will Harris. And again: If the defendant was seeking a difficulty with Ambrose in the manner shown by some of the evidence, i. e., hunting for him after -an altercation with him with a deadly weapon held up to view, this itself would be provocative of a difficulty with his brother, Will Harris ; and charges which assert, as do several of those refused to the defendant, in effect that the defendant, though thus seeking Ambrose, apparently to kill him, might still be without fault in bringing on the difficulty with Will, are inconsistent and self-repugnant, affirmatively bad when' referred to one aspect of the evidence, and at the least confusing and misleading. All these requests for instructions were, therefore, properly refused.

7. Charge 1 requested by the defendant ignores the inquiry of fault pel non, on his part in the inception of the difficulty, and assumes that retreat would have endangered him.

8. Several of defendant’s charges which were refused are bad in that they leave it to the jury to determine what is self-defense — a question of law for the court.

Some questions other than those covered by the fore-, going opinion are presented by this record ; but the ruling of the court upon them was either correct, or they are such questions as will not arise upon another trial.

Reversed and remanded.