Handley v. State , 96 Ala. 48 ( 1892 )

MoCLELLAN, J.

On tbe facts hypothesized in charges 7 and 8, refused to the defendant, he was clearly guilty of murder. An officer charged with the duty of arresting a misdemeanant has no more authority to shoot him down to prevent an escape, than he would have the right to kill any indifferent person who was casually ■ walking or running away from the place where the officer happened to be •; and of course a private person, who was lending aid in effecting the arrest at the request of the officer, as was the defendant here, according to one aspect of the evidence, would certainly have no more right than the officer himself. On the facts so postulated, the jury could not be justified in finding the defendant guilty of manslaughter only, as these charges would have authorized them to do ; nor would they have been authorized to conclude that defendant did not entertain the formed design to kill, which is necessary in murder, since the law presumes such formed design-from the facts that the defendant intentionally used a deadly weapon with a fatal result — and this, not in an exigency which justified or even palliated the act, but solely for the purpose of preventing the escape of a misdemeanant, — an end which the law does not admit of being subserved by the taking of life, and which constitutes no excuse, justification or palliation for the taking of life. Both these charges were, therefore, not only misleading and confusing-in their tendencies, but affirmatively incorrect and unsound statements of the law; and each of them was properly refusedTN

There was evidence to the effect that, on the morning of the day of the homicide, when a witness and defendant were going to Calera to sue out the warrants for the arrest of the deceased, “defendant told witness that he' had killed or shot five (5)' men while he was guarding convicts for Mr. Jackson at Blount Springs in Blount county, Alabama; and also, that on the previous night, while defendant and witness were near the dwelling-house of deceased, if deceased had shown his head at the door, he, defendant, would have shot him.” It is most clear to us that this was evidence tending in some degree to show that defendant had killed other persons than deceased, or five persons other than deceased, and that defendant had shed the blood of other men than that of deceased; and it was a fair inference to be drawn in argument, and by - the jury, from the facts which this evidence tended to establish, that defendant had shot five other men, and would have causelessly shot deceased through the window of his house, bad the opportunity to do so been presented; tbat “tbe defendant liked to sbed man’s blood.” Charges 9, 10 and 11, wbicb respectively asserted tbat there was no evidence tbat defendant “ever killed any other person,” <fcc., &c., “ever sbed any other man’s blood,” or “liked to sbed man’s blood,” were therefore well refused. And it is of no consequence in this connection tbat tbe declarations of tbe defendant, as to shooting or killing five men at Blount Springs, might have been excluded from tbe jury as irrelevant testimony, bad objection been made to it. No objection was made, and it was treated as competent evidence.

Counsel do not insist upon tbe exceptions reserved to tbe court’s action in refusing to give several other charges requested by "the defendant, and we will therefore not discuss those rulings. Tbe instructions have, however, been carefully examined, and it will suffice to say that they are patently either affirmatively bad, or, when referred to tbe evidence, involve such tendencies to mislead tbe jury as to justify their refusal.

Tbe judgment of tbe Circuit Court is affirmed.