McNeill v. State , 102 Ala. 121 ( 1893 )

McOLELLAN, J.

The general charge of a trial court given ex mero motu with reference to any point is to be considered as an entirety, and in connection with the evidence ; and it “should be read and construed with regard to the connection between its several sentences and propositions, each declaration being shaded and interpreted in the light of the context; and if any part so considered, limited or expanded, asserts the law correctly, it will not furnish ground for reversal, however faulty the clause might be if its meaning were not controlled by prior or subsequent passages.” — Montgomery & Eufaula R. R. Co. v. Stewart, 91 Ala. 421, 427; Williams v. State, 83 Ala. 68; O’Donnell v. Rodiger, 76 Ala. 222; L. & N. R. R. Co. v. Orr, 94 Ala. 602.

Considered in this way — and probably even without reference to the principle just stated — that part of the court's general charge to which exceptions were reserved asserts no more than this : that if a man find his wife in the act of adultery, and, provoked by the wrong done him and moved by the passion naturally engendered, he immediately kills her, he is not guilty of murder, but of manslaughter only, but that, on the other hand, if he does not strike and kill until after there has been time for his passion to cool and for reason to reassert itself, or if he strikes and kills immediately, but is not moved thereto'by the heat of passion but by prior malice, hatred, a desire to avenge the wrong done him, or by any other motive or upon any design whatever except such as is presently engendered by the paroxysm of rage into which he is thrown by this extreme provocation, he is guilty of murder. And this beyond all doubt is- the law. — 2 Bishop Cr. Law, § 708; Wharton on Horn., §§ 407-412; 9 Am. & Eng.-Encyc. of Law, pp. 578, etseq.

Charge 1 requested by the defendant is bad in that it assumes there was a difficulty at the time of the mortal blow between the defendant and deceased, when the evidence for the State tends to show' that the deceased was striken while she slept.

Charge 2 requested for the defendant is palpably vicious in that its direct tendency was to have the jury find the defendant guilty of murder or not as they should find the deceased to have been a virtuous or lewd woman.

Charges 3 and 4 were properly refused to defendant for that they pretermit all inquiry as to whether there had been time for defendant’s passion to cool after he caught his wife in the act of adultery, if indeed he did see her in the act of adultery, and prior to inflicting the mortal blow upon her. If there had been such time it is wholly immaterial whether the passion aroused by the act of adultery had cooled or not, for though the paroxysm of anger and rage in fact continued and moved the defendant to the fatal, blow after the lapse of sufficient cooling time, yet would he still be guilty of murder. These instructions, moreover, are, to say the least, confused, self-repugnant and misleading in that they assume there may be a motive for an.act which is superinduced by and done in the heat of passion. The absence of motive is essential to the ascription of the act to unreasoning fury, and where there is motive the killing is murder and not manslaughter.

The court committed no error in its action with reference to that part of the solicitor’s argument to which objection was, made. No fact was stated by him, but to the contary all he said was but the expression of his opinion or anticipation as to what would be the result of committing the defendant to the penitentiary for life instead of inflicting the death penalty — an argument for the death penalty proceding on considerations the reasonableness of which was as much open to the jury as to counsel, and nothing said was beyond the limitations put upon the remarks of counsel to the jury by repeated decisions of this court. — Cross v. State, 68 Ala. 476; E. T. Va. & Ga. R. R. Co. v. Bayliss, 75 Ala. 466; Wolffe v. Minnis, 74 Ala. 386; Noble & Ware v. Mitchell, 100 Ala. 521; B. M. R. R. Co. v. Harris, 98 Ala. 326.

The judgment of the city court must be affirmed; and the time originally fixed for the execution of the sentence of death imposed, thereby having passed, it is here ordered and adjudged that the sheriff of Mobile county will, on Friday, the 18th day of May, 1894, proceed to execute said sentence in the manner prescribed by law.

Affirmed.