Stillwell v. State , 107 Ala. 16 ( 1894 )

HARALSON, J.

There was no error in that part of the court’s general charge and the 3rd charge given for the State, to which exceptions were reserved, as applicable to the facts of this case. One may be at fault in bringing on a difficulty, but if he withdraws from it in good faith and is departing, and the other party pursues him, and firings on the difficulty again by his own fault, he cannot invoke the doctrine of self-defense,, but will be treated, as an aggressor a?) initio. — Parker v. The State, 88 Ala. 4; Bostic v. The State, 94 Ala. 47.

Charges 1 and 2 asked and given for the State assert very correct and familiar principles of law. No degree of provocation will extenuate a homicide, “if it bo the result of a cool, deliberate judgment and previous malignity of heart.” As has been well said, “The law carefully distinguishes between a sudden transport of passion, which springs instantaneously from what it allows as a sufficient provocation, and which prompts to an immediate act of violence, and a purpose of revenge, which usually follows such passion. In the first case, in condescension to the frailty of our nature, the law allows the provocation to extenuate a homicide committed at the instant, from murder to manslaughter. In the other, the provocation furnishing an incentive to revenge, so far from extenuating the crime, is a circumstance to be looked to as an evidence of malice.” What constitutes a sufficiency of cooling time is one for the court, under the facts of the case, aiid not for the jury. Felix v. The State, 18 Ala. 724; Keiser v. Smith, 71 Ala. 482; McNiel v. The State, 15 So. Rep. 352; 2 Bish. Cr. Law, § 713.

The facts of this case show, that defendant struck deceased the blow that killed him, after deceased had assaulted him with a piece of plank. As soon as assaulted, defendant picked up an iron poker with which to return the blow, but he was arrested in that intention by a bystander, and made to put the weapon down. After this, deceased started away and got to the front door, when defendant picked up the poker and following, struck deceased over the head with it, causing his death. We must hold, that the use of the deadly weapon under these circumstances, was not simply the result of passion but also of revenge or malice. It was therefore unnecessary for the eourt in giving charge 1, to add, the qualifying words, “unless the evidence which proves the killing, rebuts the presumption of malice,” as defendant’s counsel insists ought to have been done. — Hornsby v. The State, 94 Ala. 66; Hadley v. The State, 55 Ala. 37.

What pertinency charge 4, given for the State, has, we are left without information to determine. It states that charges asked by defendant and given, are not in conflict with those given for the State, and yet, the charges given for defendant, are not set out in the transcript .

Charges A and B requested by defendant were properly refused. The first is an argument, and both are misleading, as we have seen, in their application to the facts of this case.

Affirmed.