Karr v. State , 106 Ala. 1 ( 1894 )

BBICKELL, 0. J.

— 1. When it becomes necessary to prove handwriting, any person having a previous knowledge of the writing of the supposed writer, may express an opinion that the writing in question was or was not written or signed by him.' The frequency or infrequency of the opportunities of the witness to acquire knowledge rendering him capable of expressing an .opinion, or the nearness or remoteness of such opportunities, in point of time to the time of his examination, are matters addressed to the credibility or weight, and not to the admissibility of the evidence, and are for the consideration of the jury. The testimony of the witness Glidewell shows that on two or three occasions, considerable lapse of time intervening, he had seen the defendant write the names of persons and places casually, and that there was in his handwriting a peculiarity attracting his attention, and the last of these occasions was several years before the trial. The testimony is not the highest and most satisfactory kind, but it was competent, and authorized the introduction of the writing in evidence, so far as its admissibility depended on proof of handwriting. — Lawson on Expert and Opinion Evidence, 280-86 ; 1 Green. Ev., § 577 ; Hopper v. Ashley, 15 Ala. 457.

2. It is a cardinal rule, in the law of evidence, that facts and circumstances, which, if proved, are incapable of affording a just, reasonable inference or presumption in relation to a material fact involved in the issue on which the jury are to pass, are irrelevant and inadmissible. Testimony to be admissible must relate to and be connected with the transaction it is intended to elucidate, and the connection with it must not be remote, or a forced, strained, or mere conjectural conclusion. It must have a reasonable tendency to prove or disprove a material fact in issue. Of itself, it may not be full proof or disproof; it may be but a single fact or a collection of facts, or a single link in a chain of circumstances, or it may be merely corroborative. When it is without either of these properties ; when it is of remote and collateral facts, from which no fair and reasonable inference can-be drawn, it is inadmissible, since, as is said by Starkie, it is “at least useless, and may be mischievous, and may tend to distract the attention of the jury, and frequently to prejudice and mislead them.” — Governor v. Campbell, 17 Ala. 566; Seals v. Edmondson, 71 Ala. 509; State v. Wisdom, 8 Port. 511.

In form, the writing is a letter without date or signature, addressed to the deceased. When it was written, or how or when it came to the knowledge or possession of the deceased, is not shown, further than as it may be matter of inference from the fact that after he was slain it was found in his possession, and had been for two or. three weeks previously. It manifests that because of imputed misconduct, the deceased had incurred the hostility and resentment of the author, warns him to leave the settlement, and threatens him with personal violence, if he does hot heed the warning. It does not appear that, in consequence of its communication to the deceased, he was alarmed or excited, or induced to take any measures of defense or protection against the threats. It produced no change in the relations existing between the deceased and the defendant, or his father. Their relations were peaceful, until two or three days prior to the killing, when a quarrel originated between the deceased and the father of the defendant, touching their rights to a part of a crop produced by the labor of the deceased on the lands of the father; and it was not until after this quarrel that the deceased commenced carrying a gun, if previously he had one. If the letter was introduced as explanatory of the fact that the deceased was armed, carrying a gun at the time he was slain, it is obvious that there was no connection between the two facts ; that the one was not the moving cause, or the inducement, or exerted any influence in inducing the other. To accept the letter as having a tendency to explain the fact that the deceased had and was carrying a gun when slain, would be an invitation to the jury, to indulge inferences which are not only far-fetched, but are absolutely inconsistent with the established facts, and all the reasonable inferences deducible from them. .Karr v. State, 100 Ala. 4.

Malice is the essential constituent of murder ; and the external circumstances most often relied upon as evidence of its Existence, independent of such as.may attend the killing, are unfriendly relations existing between the slayer and the slain, former grudges or quarrels, antecedent menaces, or concerted schemes to do the slain injury. These circumstances are of peculiar value in identifying the wrongdoer, -when that inquiry is involved; and they are of peculiar value, when the wrongdoer is known, so far as they tend to an elucidation of the act of killing. In the present case, the fact was undisputed that the defendant and his father committed the homicide with which they were .charged ; nor was it matter of controversy that the killing was the termination of the continuous difficulty, originating two or three days previously between the deceased and the father of the defendant. The evidence not only tends to exclude, but directly and positively excludes any other cause of quarrel ; and excludes all just or reasonable presumption that the slayer or the slain were moved' or influenced because of any previous cause of quarrel, or pre-existing hostility or resentment. All that the letter imports is, that at some time prior to the killing, the defendant had hostile feelings toward the deceased, and the purpose, deliberate it may have been, to do him great bodily harm, and is evidence of pre-existing malice. The malice it manifests is too far removed from the killing, not by the mere lapse of time, but by the intervening events, and more immediate causes to which the killing must be attributed, or the force of the evidence disregarded to authorize proof of it. The continuance of malice is not arbitrarily presumed; and it is never presumed where there is evidence repelling it. The circumstances attending the homicide are often the better and stronger evidence, repelling the presumption. — Wliar. Homicide, § 441. The law will not presume a killing to have been perpetrated upon former grudges and threats, if there is proof to the contrary; proof of a more immediate cause upon which the killing should be predicated. — Copeland v. State, 7 Humph. 479; State v. Hill, 4 Dev. & Batt. 491; State v. Baker, 1 Jones (Law) 267; 1 East Pleas Crown, cli. 5, § 12. There is no aspect of the case in which the letter can be regarded as relevant, admissible evidence ; no fact involved in the main, principal inquiry upon which the jury were to pass, it had any just, reasonable tendency to elucidate. The only purpose it was capable of serving was to widen an inquiry into mere collateral facts, or to lead the jury astray, directing their attention from the facts and circumstances attending the transaction, and which give to it, when ascertained, the true, real complexion it should bear. In this view, however, a majority of the court do not concur. They are of opinion, if the jury are satisfied the defendant was the author of the handwriting, that it has a tendency to show pre-existing hostility to the deceased, antecedent threats of personal violence, indicative of malice, and may be properly considered in determining whether the killing was upon analice or in self-defense.

3. The instruction given by the court in its general charge, in respect to the degree or quantity of evidence necessary to justify the jury in pronouncing a verdict of guilty, is free from all just objection. It is expressed with care and precision, well calculated to impress the jury with a clear idea of all that the law intends by the requirement that the evidence should generate full belief of the guilt of the defendant to the exclusion of all reasonable doubt. The instruction on this subject given at the instance of the State, was useless, except as an argument ; it did not explain or qualify the full and explicit instruction which had been given, and very properly could have been refused. It may well be doubted whether an argumentative instruction should ever be given; and in some jurisdictions the giving of them is reversible error. But in this court, while the practice of giving such instructions lias not been favored, the rule has been declared, that if they assert correct legal propositions, the primaiy court has a discretion to give or refuse them, which will not be revised on error.

4. It is doubtless true, that if a felonious attack be made on the dwelling house, or its inmates, or if it be threatened under such circumstances as create the reasonable belief that it is imminent, it may be resisted even to the taking of the life of the assailant. And it is also true, that the right of a son to defend his father is coextensive with the right of the father to defend himself; and whatever the father may do rightfully in repelling an assault, actual or threatened, the son coming to his assistance may do rightfully. And it is equally true, that when one is assailed in his own dwelling, or place of business, there is no duty resting upon him to retreat, though retreat may be possible, from an assault he has not provoked. It is on these propositions, it was intended to found the three instructions requested by the appellant which were refused by ,.tlie court. But it will be observed, that each of them predicates the right of the defendant to defend himself and to defend his father, on his own freedom from fault in bringing on the difficulty, excluding all reference to the freedom from fault of the father. As we have said, the right of the defendant to defend his father was coextensive with the right of the father to defend himself; he had not, as the father had not the right to take life to save the father from the consequences of- an assault he knew the father had provoked.— Whatley v. State, 91 Ala. 108 ; Gibson v. State, Ib. 64. If these instructions had observed this principle, they should have been given.

5. The several instructions given at the instance of the State, have been examined, and we find reversible error in the fifth only. It is not true, that previously formed design on the part of tire defendant to take the life of the deceased, as is asserted in one of the alternatives of the instruction, will of itself preclude the right of self-defense. — Hornsby v. State, 94 Ala. 55; Domingus v. State, Ib. 9. If there be evidence tending to show that prior to the killing, the defendant had the deliberate purpose, or the formed design, to take the life of the deceased, or to do him great bodily harm, and evidence tending to show that at the time of the killing he was rightfully defending himself, or his father, from a felonious assault made or threatened by the deceased, the true inquiry is, whether he availed himself of the circumstances as a pretext for carrying out the previous purpose or design. If that is not true, the existence of such purpose or design should not debar him from the right of defending himself or his father, to the extent the right would exist, if he had never entertained such purpose, or formed such design.-DeArman v. State, 71 Ala. 851.

For the errors pointed out, the judgment must be reversed and the cause remanded. The defendant will remain in custody until discharged by due course of law.

Reversed and remanded,