White v. State , 111 Ala. 92 ( 1895 )

HEAD, J.

The witness, John W: Martin, testified, for defendant, to the latter’s good character for peace and quiet. The State, on cross-examination, asked the witness if ho had not heard of an affray or fight in which the defendant participated. This was competent, not for the purpose of showing that defendant was not a peaceable and quiet man, but for the purpose of shedding light on the credibility of the witness’s statement that defendant’s character was good for peace and quiet.— Lowery v. State, 98 Ala. 49. The nature of the statement, According to the past rulings of this court, is such that it has relation to the subject of general character, in reference to which, the witness was called to testify by the defendant. The question whether or not the witness knew that defendant liad been tried for, and acquitted of, the assault or affray which he had heard the defendant participated in, was of a different nature. It was a statement of the witness’s individual knowledge of a particular fact, sought to be introduced to shed light on the witness’s knowledge of the defendant’s general character for peace and quiet; and we think was not admissible.

The court properly refused to admit evidence of the defendant’s good character whilst confined in jail under the charge for which he was being tried. Evidence of character must be confined to the time of, and anterior to, the alleged commission of the offense for which he is being tried.

The dying declaration testified to by the witness, Chaney Mitchell, was properly admitted. It, in connection with her condition and almost immediate death, carried, with itself, sufficient evidence of a sense of impending death, to justify the court in admitting it. But, in view of the inhibition of the statute (Code, § 2754), the court was not justified in pronouncing, ex mero motu, upon its effect, as it did in the oral charge. The instruction was that''the declaration, “under the circumstances, and in view of her condition when made, indicates that she then realized she was about to die,” &c. The word “indicates,” as here used, is the same as “shows,” and renders the instruction a charge upon the effect of the evidence,'which the statute forbids. As the judgment must be reversed on other grounds, we will not decide whether this was error without injury, in view of the fact that the declaration as to the homicide, in its strongest light against defendant, was no more than that the defendant shot the deceased, and the undisputed'evidence was that the defendant did shoot the deceased — he testifying to the fact himself, and defending only by seeking to show that it was an accident.

The matter of the first charge requested by defendant was not such as to which the court was under duty to instruct the jury.

The second charge was wrong in principle, argumentative and properly refused.

Charge number 4 was as follows: ‘‘The flight of a defendant, in a criminal case, may or may not be considered as a circumstance tending to prove guilt, depending on the motive which prompted it, whether a consciousness of guilt and a pending apprehension of being brought to justice caused the flight, or whether it was caused from some other and more innocent motive, and the jury may look to the fact that he went to police headquarters and gave himself up.”

In Bowles v. State, 58 Ala. 335, we said: “All evasions or attempts to evade justice, by a person suspected or charged with crime, are circumstances from which a consciousness of guilt may be inferred, if connected with other criminating facts. Of themselves, they may not warrant a conviction, but they are relevant, as evidence, and the weight to which they arc entitled, it is the province of the jury to determine, under proper instructions from the court. * * * Flight for which no proper motive can be assigned, and which remains unexplained, is a circumstance, all authorities agree, it is proper to submit to the jury, in connection with other evidence tending to show the guilt of the accused. In the old common law, the rule which passed into a maxim was that flight was equivalent to a confession-of guilt: fatetar facimus qui judicium fugit. At the present day it is regarded as a mere criminating circumstance, indicative of a consciousness of guilt, and of an attempt to evade justice, which is subject to infirmative considerations that may deprive it of all force. The’unfavorable inference against the prisoner would be lessened if lie voluntarily returned and surrendered himself to answer the accusation. * * * We think it permissible to prove the fact of flight, and all the facts connected with it, either to increase or diminish the probative force of the fact itself.”

In Sylvester v. State, 71 Ala. 17, we declared a principle in substantially the language of charge 4, under consideration.

The evidence shows that the defendant committed the homicide about 2 or 3 o’clock in the morning, that he fled from the place, and went directly to police headquarters about two miles distant, reported to the sergeant of police what he had done, and surrendered himself and the gun with which he had committed the act to that officer. There is, in the evidence, no other fact or circumstance touching the subject of flight. It is evident, therefore, that what the defendant did, in respect of flight, carried with it no evidence of a consciousness of guilt. It was no more than a commission of the homicide, flight from the place, and an immediate, voluntary surrender by the perpetrator to the constituted authorities confessing that he had committed it. Referred to this state of proof, the charge was correct, had no misleading tendency because of the singling out of a fact from other facts, and ought to have been given. It was not objectionable for referring specially to the duty of the jury to look to’ the surrender, for that, with the accompanying declarations of the defendant which constituted a part of the surrender, was the only circumstance which the jury could consider.

For the errors pointed out the judgment is reversed and the cause remanded. Let the defendant remain, in custody until discharged by due course of law.

Reversed and remanded.