Lewis v. State , 96 Ala. 6 ( 1892 )

McCLELLAN, J.

-The Statk proved the flight of the defendant as tending to establish guilt. Defendant sought to rebut the inference afforded by the fact of flight by showing that flight was-* due. to defendant’s fear that Lovelace, the father of' the deceased, would summarily avenge the homicide, ¿ and not a consciousness of guilt. It was of course competent to prove defendant’s personal fear to explain his flight, but this could not be done by the testimony of a witness that, “the defendant seemed afraid of Lovelace,” a mere “opinion of the witness, based either on the conduct or declarations of the defendant himself, or else unsupported by fact at all.” — Poe v. State, 87 Ala. 65; McAdory v. State, 59 Ala. 92; Gassenheimer v. State, 52 Ala. 313.

The proposed testimony of the defendant as to the intention with which he pitched the brick which inflicted the fatal wound was properly excluded. A witness can not testify to the uncommunicated intention with which he did an act.— Wheeless v. Rhodes, 70 Ala. 419 ; Burke v. State, 71 Ala. 377; Whizenant v. State, lb., 383; Stewart v. State, 78 Ala. 456; Fonville v. State, 91 Ala. 39; Baldwin v. Walker, Ib., 428 ; E. T., V. & G. R. R. Co. v. Davis, Ib., 615.

That part of the court’s general charge to which the first exception was reserved is in effect, that if one intentionally does an act which is calculated to take life and death is produced by it, the homicide is manslaughter in the first degree. This is the law. An actual intention to take life is not an essential element in this offense or indeed in murder. The voluntary setting in motion or application of unlawful force, or the doing of an act greatly dangerous to the lives of others, whereby death ensues, will suffice to supply the legal elements of evil intent, however free the action may be from actual purpose to kill. These principles justify the charge given by the court and its refusal to give charges 1 and 22 requested by the defendant. — Harrington v. State, 83 Ala. 9; Williams v. State, 83 Ala. 16; Hornsby v. State, 10 So. Rep. 522; Mitchell v. State, 60 Ala. 29; Washington v. State, 60 Ala. 10; Nutt v. State, 63 Ala. 180; Hampton v. State, 45 Ala. 82; McManus v. State, 36 Ala. 285.

It was not controverted that the defendant intentionally threw, or “pitched,” the brick which produced death, at the deceased. Whether he intended to kill deceased or not, that result is chargeable to his voluntary act; and not to misadventure. There being thus no testimony tending to show that the killing was “accidental,” the court rightfully refused to instruct the jury on that hypothesis.' — Walker v. State, 85 Ala. 7. Any charge in line with defendant’s request in this connection would have been abstract, and, hence, even had such instruction been requested in writing, which itvwas not, should have been refused.- — Ruse v. State, 90 Ala. 624; Railroad Co. v. Watson, 90 Ala. 41.

If it was apprehended that the defendant would be prejudiced by the failure of the presiding judge, to charge the jury on the hypothesis that defendant’s evidence might be true,” at least request should have been made that he so charge them. This omission, very clearly we think, afforded no ground for an exception to tlie court’s general charge as given. "Whether such request “should, if made, have been complied with, we need not decide. Possibly defendant should have asked special written charges covering the point, the court having charged the jury as to their duty in the event they found the fact in line with the tendencies of the State’s evidence.

Charge 6 refused to defendant is manifestly distinguishable from the charge which this court held in Elmore v. State, 92 Ala. 51, should have bepn given. It is easily open to a construction which would subject it to the objections held fatal to a similar charge in' the case of A. G. S. R. R. Co. v. Hill, 93 Ala. 514. Moreoyer this charge is, for reasons stated, in another connection, abstract, in that there is no evidence in that case which tends to show that the killing was accidental, in a lega] sense, and it is misleading, in that the jury would naturally have been induced by it to the conclusion that the defendant could not be guilty unless he had the purpose to kill the deceased. It may be that “the law in no case requires the greatest care that can be used,” as stated in charge 26, requested by the defendant, but in all cases, we apprehend it does require greater care than any phase of the evidence found in this record shows defendant to have exercised, much greater care than can possibly be implied from any method of -heaving a brickbat at and against a small boy; and to have given this charge could have served no other end than to confuse and mislead the jury. * •

It was entirely competent and proper for the trial court to explain not to qualify, limit or modify, the written charges given for defendant in the ma*aner shown by the record. A. G. S. R. R. Co. v. Moody, 92 Ala. 279; Lowe v. State, 88 Ala. 9; Barnard v. State, Ib., Ill; McKleroy v. State, 77 Ala. 95.

Charge 23 requested for the defendant is a correct exposition of the law as expounded in Williams v. State, 83 Ala. 10, and should have been given.*

For the error committed in its refusal the judgment must be reversed ; and the cause will be remanded.

Reversed and remanded.