Horn v. State , 98 Ala. 23 ( 1893 )

STONE, C. J.

There was an application for a change of venue in this case, and a very strong showing was made in support of it. On the other hand, a full showing was made that before the trial came off better counsels prevailed, passions had cooled, and the sentiment of the public had settled down to the determination that the accused should have a fair and impartial trial up>on the evidence as it should be developed. This counter showing was supported by many affidavits of persons residing in many different precincts of the county. We have no means of knowing the character and intelligence of the several affiants, and hence can not speak of the same. The judge of the Circuit Court was on the same ground, and could inform himself in these respects. He had, therefore, much better opportunities for arriving at a conclusion on this application than we can liave. He denied tbe motion, and we are not satisfied that he erred. This case, on this question, is not distinguishable in its legal bearings from that of Hawes v. State, 88 Ala. 37; and on the authority of that case we hold that appellant can take nothing on this alleged ground of error. Hussey v. State, 87 Ala. 121; Seams v. State, 84 Ala. 410.

The Circuit Court did not err in the employment of a sworn interpreter, to interpret the testimony of the prosecuting witness. Some of the jurors. were unable to understand his attempt to speak the English language, and it was the Court’s duty to have the testimony put in such shape, as that it could be understood by the body, whose duty it was to pronounce on the facts. Code of 1886, § 2764; 1 Whor. Ev. §§ 174, 407.

There was certainly nothing in the objection to the question propounded to the witness Walker, or to the answer he gave to that question. Their purpose and tendency were to prove the accused contemplated violence on the person lie is charged to have assaulted. This was material testimony to be considered by the jury, in determining who brought on the difficulty, and also, on the inquiry of formed design, an essential element of the offense with which he was charged. Ross v. State, 62 Ala. 224; Fields v. State, 52 Ala. 348; Ex parte Nettles, 58 Ala. 268; Ex parte Warrick, 73 Ala. 57; Mitchell v. State, 60 Ala. 26; Cleveland v. State, 86 Ala. 1; De Arman v. State, 71 Ala. 351; Gibson v. State, 91 Ala. 64.

The indictment in this case, pursuing the form prescribed in our Code' — form 12 — charges “that Paul Horn unlawfully, and with malice aforethought, did as.sault Isaac Rosenberg, with intent to murder him.” This indictment, while it specifically charges a felony, by operation of law charges every lesser offense included in the one charged. Hence, it charges the defendant with assault and battery and with a simple assault, in neither of which is malice aforethought an essential ingredient. Jones v. State, 97 Ala. 77.

Charges 8, 5 and 6 asked by defendant, claimed an acquittal of defendant, if there was a failure of proof of malice aforethought. These charges were rightly refused for the reason stated above, if for no other.

Charge No. 1, asked by defendant is too meagre in its postulates. It pretermits all inquiry of defendant’s conduct anterior to the time Rosenberg is supposed to have assaulted him; and fails to hypothesize that the supposed assault from Rosenberg menaced grievous bodily harm,. If one by bis conduct provokes an assault, or assault and battery on bis person, wbicb is not likely to produce death, and then, pursuant to a formed design, general or special, shoots his adversary with intent to kill him, this would be an assault with intent to murder. This charge was calculated - to mislead, and was rightly refused. 3 Brick. Dig. 111, 112, §§ 84, 85, 86.

Another charge, asked by defendant and refused, appears in the transcript before us as No. 1. It is the 6th in the series, as they appear in the bill of exceptions. Its language is, “The testimony of a witness for the prosecution, who is shown to be unworthy of credit,” &c. This charge was calculated to mislead, in this, that, if given, the jury might have understood the Court as affirming, as matter of fact, that the witness was unworthy of credit. That was a question to be left to the jury. 3 Brick. Dig. 111; §§ 80, 82.

Charges asked in a lump, and refused in a lump furnish no ground for a reversal, unless each one is free from error. The defendant asked two charges at the same time, one of which we have commented on last above, and pronounced faulty. We need not consider the other. 3 Brick. Dig. 80 ,§ 41.

Defendant also asked, at one and the same time, three several charges, all written on one piece of paper; .and the presiding judge wrote across the paper, “refused,” and signed his name. As shown in the record, this was a single ruling, and can not be made the subject of several exceptions. The first of these three charges assum.es and states as a fact that when the defendant fired the pistol, he was “at the time held by Charley Tennerson.” His own testimony tended to show such was the case, but it was not an uncontroverted fact. It should have been left to the jury, Bain v. State, 70 Ala. 4; Dolan v. Stale, 81 Ala. 11; Watson v. State, 82 Ala. 10. Charges 2 and 3 of that lot are also wanting in clearness. Each of these was rightly refused.

Charge A asked by defendant, refused by the court, and the refusal excepted to, is in the following language :

“ The facts must raise the presumption of intent to murder ; and if the jury find that the State has failed in this; then they must acquit the defendant of an assault with intent to murder.” This charge ought to have been given. It states succinctly and clearly the controlling principle in all prosecutions for this offense. There must be an assault, ana there must be an intent to take life, under circumstances which, if successful, would constitute murder. That intent, being a mental purpose, or state of the mind, is rarely, if ever, susceptible of direct proof. It is an inference to be drawn by tbe jury, from tbe facts testified to by tbe witnesses. When tbe proof shows tliat an act was done, or attempted to be done, wbicb in tbe course of nature was calculated to take life, and tbe attendant circumstances fail to show a case of self-defense, and fail to sliow it was brought about by sudden passion aroused by an unprovoked, personal wrong, not less grievous than an assault; or, if the circumstances show that tbe accused made tbe attempt, pursuant to a formed design to take life, no matter bow recently that design may have been formed, this is an assault with intent to murder '; and if tbe facts wbicb raise tbe presumption of such intent to take life, be proved to tbe jury’s satisfaction beyond a reasonable doubt, it is their duty to convict. But, tbe facts which raise this presumption, must be proved so clearly as to leave no reasonable doubt of tbe intent of tbe prisoner to commit tbe murder. “A man must be taken to intend that wbicb be does, or wbicb is tbe immediate or necessary consequence of bis act.”—Meredith v. State, 60 Ala. 441; Williams v. Stale, 77 Ala. 53; Lawrence v. The State, 84 Ala. 424; Walls v. State, 90 Ala. 618.

Beversed and remanded. Let tbe prisoner remain in custody until discharged by due course of law.

Beversed and remanded.