Harris v. State , 96 Ala. 24 ( 1892 )

McCLELLAN, J.

There was- evidence which tended to show that the defendant was assaulted at a late hour of the night in a room which he had rented, and which was occupied by him at the time as a -bed room. There can, of course, be no doubt that the room thus held and occupied was the castle of the defendant,' from which no duty to ra-treat rested on him, and in which he had the right to stand his ground and defend himself, even to the death of an assailant who is, or reasonably appears to be, about to kill or inflict grievous bodily harm on him. Charge No. 2 requested for the detendant, as we read it, asserts this proposition of law, and should have been given.- — Jones v. State, 76 Ala. 8.

The defendant being under no duty to retreat, and 'there being no evidence that he was at fault in bringing on the difficulty, other than by way of inference from that tendency of the State’s evidence toward showing that he fired the first shot after the door was opened, he should not have been convicted, if the jury ironfall the evidence entertained a reasonable “doubt whether, he acted upon the well' grounded and reasonable belief that it was necessary to shoot and take the life of Lovelace to save himself from great bodily harm or from death, or that he shot before such impending necessity arose.” If the jury could not say beyond all reasonable doubt which of these states of fact in 'reality existed, they could not say with that near approach to certainty which tlig law requires that he acted under circumstances which did not justify him in taking life ; the onus of proving the circumstances, in so far as they bore upon the question of defendant’s fault in bringing on the difficulty, being on tbe prosecution. Charge 6 asked for defendant should, therefore, in our opinion, have been given. — Cleveland v. State, 86 Ala. 1.

Evidence which goes to show that a witness has made statements out of court, or on a former investigation of the case before the coroner or a committing magistrate, which are inconsistent with his testimony as adduced at the trial, tends as a matter of law to impeach- his veracity. This, indeed, is the sole ground upon which such evidence is admissible, and if it involved no such tendency it would not be competent. Notwithstanding such tendency, the jury may still believe the witness. Whether they do or nót is a question for them alone. The court, can not say to them that the witness- is or is not thereby impeached; to do so would be an invasion of their exclusive province. But to charge them merely that certain evidence tends to impeachment, or that certain other evidence tends to sustain the witness, or that there is evidence tending in both directions, where such is the case, is not an invasion of their prerogatives, and does not take away from them the right to reach any possible conclusion in the premises, but leaves them free to arrive at what they regard as a just result, after considering all the tendencies of the evidence bearing on the point, and adopting some of these tendencies as leading to the real facts, as they find them to be upon the whole evidence. Tested by these principles, charge numbered 5 of defendant’s series was not open to the objection that it was invasive of the province of the jury, and its refusal was error.

The remaining charges requested for defendant were faulty, and properly refused. Eor instance, charges 1 and 4 were bad in that they assumed that defendant’s door was “broken open,” and that deceased broke open said door, as to which facts the evidence was in conflict or, at least, not free from adverse inferences. Charge 3 is confused and might have misled the jury in that it declares that the appearance of imminent peril, &c., need not be real, &c., &c. The peril need not be real, but, if not, it must appear to be so, and this appearance must be the real semblance of the situation, the real aspect of affairs which is presented to the defendant, though the situation itself may not in fact be what the semblance represents it to be.

It is inferable from the testimony that the matter of deceased’s seeking Becky Thomas for the purpose of recovering a pistol, which he believed she had stolen from him, was discussed between him and his friends throughout the evening preceding tbe homicide, wbicb occurred in the early morning —up to the moment, indeed, when deceased started to the house of the defendant — and that all this time he entertained and expressed the purpose to find her and recover his property. His declarations during the time of this discussion indicative of a purpose to find Becky Thomas, and showing that he had been informed she was at the house of the defendant, were properly allowed to go to the jury as a part of the res gestee of the transaction, tending to explain and give character to his presence and conduct at defendant’s house. They were declarations made by one setting out on a journey, or starting to go to a particular place, explanatory of the objects and purposes he hád in view in going to the particular place ; and for that purpose were admissible, their weight being a matter for the jury to determine. Kilgore v. Stanley, 90 Ala. 523, arid authorities there cited.

The other exceptions reserved to the court’s rulings on the competency of testimony we deem it unnecessary to discuss. The exceptions are manifestly without merit.

The judgment must be reversed for the errors pointed out above; and the cause will be remanded.

Reversed and remanded.