Dean v. State , 105 Ala. 21 ( 1894 )

McOLELLAN, J.

The strength of a man’s mind has no bearing upon his responsibility for a criminal act, nor upon the inquiry of felonious intent, malice, and the like, if he is endowed with mind enough to discriminate between right and wrong; and the fact that he may, in common parlance, be of weak mind, standing alone, does not go to negative such discriminating intelligence. The proposed evidence of the witness, William Turner, as to whether the defendant was “a strong or weak minded man,” was clearly incompetent.

The proposed evidence to the effect that when the defendant-was excited “he became very much excited,” that if anything occurs to excite the defendant “he becomes overbalanced,” and that “when the defendant becomes excited to any considerable extent he loses his reason,” was also properly excluded, both because this testimony was impertinent in itself, and because so far from there being any evidence in the case that the defendant was excited at the time of the homicide, the only evidence on that point was to the effect that he was not excited at all; and this by the witness by whom it was attempted to be proved that the defendant became very much excited, and overbalanced, and lost his reason when excited.

The declaration of the wife of the deceased addressed to her husband some time after the latter was shot by defendant, to the effect that he, her husband, had said he would kill Lean, the defendant, was not of the res gestae of the homicide ; and it was not admissible on the theory that its truth was admitted by the wounded man, in that he made no denial of it, since it clearly appears that he was incapable of speech, if not unconscious, from the time he was shot until he died, a period of about one hour.

The defendant, being a witness in his own behalf, was asked by his counsel: “If he knew Wood’s [the deceased’s] disposition for fighting?” and if he knew at the time Wood started toward him just before the shooting that he, Wood, was a blood-thirsty, violent man? It will suffice to say of the ruling out of these questions by the court that they each assume the violent character of Wood, of which, so far as the record informs us, there was not a particle of evidence, and are directed solely to defendant’s knowledge of this assumed fact. It was a fact to be proved before either its existence or defendant’s knowledge of its supposed existence could be of any avail to him or relevancy in the case.

What pertinency the fact that the defendant considered the time of the homicide “the darkest hour in his life” had to any issue in the case we are unable- to conceive ; and the exclusion by the court of this proposed testimony can not be converted into an error by the fact that in the same connection the defendant further testified that he did not know what he was doing when he shot, and the consideration that this latter statement was offered with the other. If it be conceded, that the defendant might testify that he did not know what he was doing, which we do not decide, the court yet committed no error in excluding that testimony when offered, as here, only as one part of a statement, the other part of which was irrelevant.

It has been many times decided by this court that a witness can not depose to the uncommunicated intention with which he does an act. The court, therefore, did not err in refusing to allow the defendant as a witness in his own behalf to be asked: “What did you’take your gun down there for? ”

Affirmed.