Rhea v. State , 100 Ala. 119 ( 1893 )

STONE, C. J.

Charges 8, 10, 11, 12 and 15, given by the court in this case, each properly stated the law as to reasonable doubt; and each declared in substance that defendant was entitled to acquittal, unless the testimony convinced the jury beyond reasonable doubt that he was guilty. These charges are so varied in phraseology and presentation as to meet every phase and tendency of the testimony, and every hypothesis it justified counsel in assuming. They seem to have covered the entire field. Yet, the court, at the instance of the prosecution, charged the jury “that if they believed from the evidence that the defendant formed the design to kill Allen Daniel unlawfully, and that in pursuance of such formed design did kill Allen Daniel in this county, and before the finding of this indictment, then the defendant is guilty of murder.” This was excepted to.

It will be observed that this charge, considered by itself, is faulty in not stating the proper measure of conviction the testimony must produce on the minds of the jury to justify a verdict of guilty. Believing from the testimony that the facts exist, is not enough. The belief must be so" strong, as to leave no reasonable doubt of its truth. Such is the rule in criminal cases. Pierson v. State, 99 Ala. 148; Heath v. State, Ib. 179.

The law is tenderly regardful of human life and of human liberty. Hence the rule, which requires a higher measure of proof in criminal prosecutions than in civil suits, Charges if given separately, and separately excepted to, must, as a rule, be construed separately. Each should assert a correct legal proposition, when apjflied to the testimony.

Under our rule bad general character as a generic proposition, may be given in evidence to impeach a witness. It is not confined to character for truth and veracity. Ward v. State, 28 Ala. 53; Holland v. Carnes, 53 Ala. 83; Motes v. Bates, 80 Ala. 382; Davenport v. State, 85 Ala. 336. But the fact that a woman is a prostitute, while it is one of the constituents that make up her general character, cannot be singled out and made a special ground for impeaching her character for veracity. Birmingham Union Railway Co. v. Hale, 90 Ala. 8; McInerny v. Irvin Ib. 275. Charge 20 asked by defendant was properly refused.

There was testimony tending to show that “deceased had a bad character for fighting, turbulence, violence and quarrelsomeness.” There was also some testimony tending to show that Daniels, the deceased, made the first hostile demonstration, but the proof was in conflict on this inquiry. In De Am-cm’s^case, 71 Ala. 351-61, we said: “In this connection, the testimony offered to prove the violent or dangerous character of the deceased, if believed, should be considered. On all doubtful questions as to who was the aggressor, the violent or blood thirsty character of the deceased, if such be his character, enters into the account. More prompt and decisive measures of defense are justified, when the assailant is of known violent and blood thirsty nature. But this principle is confined to defensive measures. It furnishes no excuse or palliation for aggressive action, nor when the difficulty is brought on or sought by the accused.” This principle was approved in Lang v. State, 84 Ala. 1; Smith v. State 88 Ala. 73; Karr v. State, ante page 4. Under this principle charge 18 was asked by defendant. Its refusal was excepted to, and is urged as ground for reversal. We do not wish to impair or qualify that doctrine, but we are unwilling to extend it.

All charges asked should be moulded and shaped, so as to be in accord with some phase of the testimony ; and if not correct expositions of the !aw when construed in the light of the testimony bearing on them, they should be refused. The hypothesis of the charge asked was that the jury should consider whether the character of Daniels, the deceased, was that of a “quarrelsome and fighting man.” Neither of the words violent, dangerous or bloodthirsty is found in the hypothesis. The jury might have found that Daniels was a quarrelsome, fighting man, and yet failed to be convinced that he was a dangerous, or blood-thirsty man Defendaut killed the deceased with pistol shots; and if this charge had been given,- and if the jury had found that Daniels was simply a quarrelsome, fisticuff fighter, then they were instructed to consider such character in determining who was the aggressor in bringing on the difficulty. There was no proof that Daniels was armed, or that he had the character of being a dangerous or blood-thirsty man, who fought with weapons. We are unwilling to extend the doctrine of DeAmons case to the facts hypothesized in charge 18. Applied to the tendencies of the testimony, it would be calculated to mislead the jury. The charge was rightly refused.

Following Pierson’s case, the court reverses the conviction in this case on the single point of the charge given at the instance of the prosecution.

Reversed and remanded.