Crawford v. State , 112 Ala. 1 ( 1895 )

BRICKELL, C. J.

1. It was matter of irrevisable discretion in the court below, whether, after the selection and organization of the jury, the trial should be suspended, to enable the counsel for the defendant to examine the minutes of the court, with the view of filing a plea, alleging that the grand jury finding the indictment, was not drawn in thve presence of the persons designated by law. If the fact existed, that the grand jury was not so drawn, the irregularity could be reached only by a plea in abatement, which the statute requires shall precede a plea to the merits. — Cr. Code of 1886, §§ 4445-46. Nor was there erroivin refusing to entertain an oral plea alleging the irregularity. Oral pleas, except the plea of guilty, or of not guilty, delivered in open court, received by the clerk and entered on the minutes, are unknown in our practice. On a previous day of the term, the defendant had been arraigned, and had pleaded not guilty ; the plea was an admission of the genuineness of the indictment, precluding all inquiry into the regularity of its finding. — State v. Matthews, 9 Port. 370; State v. Clarkson, 3 Ala. 378; Russell v. State, 33 Ala. 366; Ex parte Winston, 52 Ala. 419. (lases may arise in which the irregularity in the drawing of the grand jury, by which we intend the drawing otherwise than in the presence of the officers designated by law (for this is the only defect, or irregularity, which the statute renders available to a defendant), is not known until after the plea of not guilty has been interposed. In such cases, on a proper application seasonably made, it may be the duty of the court to permit the plea of not guilty withdrawn, and a plea in abatement filed. — Russell v. State, supra; Nixon v. State, 68 Ala. 535. The defendant made no application to withdraw the plea of not guilty; no positive affirmation that in point of fact, the irregularity in the drawing of the grand jury existed. The application had an appearance of dilatoriness, not commending it to judicial favor.

■2. While there is á broad distinction between the quantity of evidence necessary to support a conviction in criminal cases, and that which will support a verdict in civil cases, the general rules and tests as to the admissibility and relevancy of evidence, are the same in each class of casses. — Wharton Criminal Evidence, § 1. The evidence must be responsive to the issues, and within the issues, it is the duty of the court to confine it. — 1 Greenl. Ev., §§ 50-52. Pacts and circumstances, which, when proved, can furnish no aid in determining the issue, can shed no light on the transaction, or matter of inquiry,' ought, especially in criminal cases, to be rigorously excluded. Every fact, to which evidence is offered, may, in itself, become the subject of controversy ; and, if controverted, opposing evidence must 'be heard. If the evidence was not limited — if there was no rule or principle respecting its admission or exclu•sion — perplexing inquiries as to collateral or irrelevant facts would constantly arise, obscuring the real issue, confusing the minds of the jury, and embarrassing trials and the administration of justice.- Parties' would be oppressed, and would often suffer grievous wrongs, for it cannot be supposed that they come prepared to meet ' any other evidence than such as is material, relevant to the issues. — Redd v. State, 68 Ala. 492; Whitaker v. State, 106 Ala. 30.

. We have been induced to this statement of general, elementary principles, because of the latitude which was given'the evidence on the trial, and because the exceptions reserved to the rejection of evidence indicate the greater latitude the defendant insists should have been given it. ’ There can be no doubt of the correctness of the rulings of the court touching the examination of Williamson as to the -illicit sexual relations which had existed, or were existing, between him and Alice Pal'mer. There was no aspect or phase of' the case, in which evidence of such relations was admissible ; and we deem it proper to say, that on a future trial all such evidence — all facts and circumstances having no other tendency than to prove such relations — should be carefully excluded. Directed as it is, against two of the material witnesses for the State, present when the homicide was committed, it is pernicious in its tendencies, and may be pernicious in its effects.. Offensive as these relations may have been to the law, and to the moral sense of the community, they afforded .neither justification nor excuse to the defendant and his companions, • for the wrongful entry of the house of the woman, with arms, in the night-time ; and if she were suing them for • the trespass, evidence of these relations, and that the purpose was to put an end to them, would not be admissible as matter of justification, or in mitigation of -damages. — 6 Wait’s Actions & Defenses, 86; Love v. Moynehan, 16 Ill. 277; Perkins v. Towle, 43 N. H. 220; Weston v. Gravlin, 49 Vt. 507. The law appointed the remedies for the prevention of the continuance of "the relations, - and for the public offense which had been committed; and to these remedies- there should have been resort, if redress of the public wrong was. sought. The citizen'may not take the law into his own-hands, for the redress of real or suspected public wrongs.

3. Nor was the evidence admissible to-discredit, as witnesses, either Williamson or Alice Palmer. Evidence that either was of general bad character, or of bad character for truth and veracity, was admissible for the purposes of impeachment.— Ward v. State, 28 Ala. 53. While this is true, it is equally true, that particular, independent facts, though bearing on the question of veracity, cannot be put in evidence for the purpose of discrediting them. — Whart. Cr. Ev., § 476; 1 Greenl. Ev., § 461; McQueen v. State, 108 Ala. 54; Thompson v. State, 100 Ala. 70; Moore v. State, 68 Ala. 360. There has not been, perhaps, more frequent application, of this rule, than when it has been sought to assail a female witness because of the badness of her reputation for chastity. — Holland v. Barnes, 53 Ala. 83; Motes v. Bates, 80 Ala. 387; Birmingham Un. Rwy. Co. v. Hale, 90 Ala. 8; McInerny v. Irvin, Ib. 275; Rhea v. State, 100 Ala. 119; Whart. Cr. Ev., § 486.

4. It is quite an error-to suppose, that these witnesses could be cross-examined as to these relations, witli the view of contradicting, and thereby discrediting them, if the relations, or the facts and circumstances tending to prove them, were denied. While a great latitude of interrogation is permissible on cross-examination, it is, as observed by Mr. Greenleaf, “a well settled rule that a witness cannot he cross-examined as to any fact, which is collateral and irrelevant to the issue, merely for the purpose of contradicting him'by other evidence, if he should deny it, thereby to discredit him. And, if a question is put to a witness which is collateral or irrelevant to the issue, his answer cannot be contradicted by the party who asked the question ; but it is conclusive .against him.” — 1 Greenl. Ev., § 449; Whart. Cr. Ev., § 484; Ortez v. Jewett, 23 Ala. 662; Blakey v. Blakey, 33 Ala. 611; 3 Brick. Dig. 828, § 101. This rule, that there shall be no contradiction of a witness in reference to matter wholly collateral to the main issue, -it is ob;vious, .is of.'infinite importance in., trials .before - a jury. If there be such contradiction of a single witness, there may be of every other witness upon the stand, and an indefinite number of mere subordinate, collateral issues raised, dependent on testimony, not the subject of indictable perjury, prolonging trials, and distracting the attention of the jury from the main issue on which they are to render verdict.

5. There was- no error in excluding the evidence touching Williamson’s concealment, or efforts to conceal himself, when the officers of the law and others came to the house after the homicide had been committed. This evidence formed no part of the res gestae ; the homicide was then an accomplished fact. Williamson was not its perpetrator ; nor had he aided or abetted in its perpetration. It is true, that one accused of crime may show his innocence by proof of the guilt of another, and if it was unknown by whose atít the death of the deceased was caused, and the ascertainment of the fact was dependent on circumstantial evidence, this conduct of Williamson, as the flight of one suspected or accused of crime, or the concealment of himself, are criminating circumstances, may or may not have been admissible, because of its tendency to criminate him. However that may be, the evidence is uncontroverted that the death was caused by a No. 38 pistol ball, and that the defendant presented and fired at the deceased a pistol, carrying a ball of that size. In the presence of this evidence, the conduct of Williamson, subsequent to the homicide, is wholly irrelevant and immaterial. It can shed no light upon the prior conduct of the defendant, or of his companions, nor upon any inquiry involved in the real issue, The error of the court was, not in the exclusion of the particular evidence to which exceptions were taken, but in the reception of any evidence touching Williamson’s conduct subsequent to the homicide. In this connection, must be taken the evidence that he remained at the house during the night, and the reasons for his remaining. The fact that he remained, and all that he did in the taking care of the body of the deceased, are minor, incidental facts, parts of the history of the homicide, to which he may testify ; in themselves, they are of but little significance, except as proof of the death. Whether he fired, or did not fire his pistol, while going to the house, before the homicide, is a collateral fact, with an inquiry into which the jury should not be burdened. . .

6. Whether Thomas Palmer should be recalled and re-examined with the view to his contradiction, was matter of discretion in the court below, and the exercise of the discretion is not revisable on error. — Louisville & Nashville Railroad Co. v. Barker, 96 Ala. 435; Richmond & Danville Railroad Co. v. Vance, 93 Ala. 144; Thompson v. State, 100 Ala. 70.

7. The receipt the defendant had given Alice Palmer, in satisfaction of the mortgage she had executed to Howie was admissible in rebuttal of the evidence, that his purpose in going to her house on the night of the homicide, was'to see her about the mortgage, or any of the property embraced in it. — Evans v. State, 109 Ala. 11.

8. The ball which was said to have been extracted from the body of the deceased, and that which was said to have been taken from the house., were properly permitted to go the jury. Whether the balls produced were identified as the balls taken from the body of the deceased and from the house, was matter for the consideration of the jury. There was, to say the least, evidence tending to identify them. '

9. Ward having testified that the general character of Alice Palmer and of Williamson was bad, and that their character for truth and varacity was bad, it was error to reject the question propounded by defendant, whether from his knowledge of .Williamson’s character, he would believe him on oath. — Whart. Cr. Ev., § 486, and authorities cited in note. Such has been the usual course of examination in this State ; it is conceded to be the course in England, and as is properly said in Hamilton v. People, 29 Mich. 186, the propriety of it was never questioned, until Mr. Greenleaf, (1 Green. Ev., § 461), expressed the opinion that the American authorities.disf avoided the English rule ; an opinion not supported by the authorities to which he refers: Hillis v. Wylie, 26 Ohio St. 574; State v. Caveness, 78 N. C. 484.

10. The evidence having-been closed, as the bill of exceptions recites, . “Before the argument began, the court limited the argument to the jury to one and one-half hours to each side, and refused to allow defendant’s counsel a longer time for argument to the jury than one and'one-half hours;” to which'action "of the- court' an exception was reserved. The constitution declares, “that in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either.” Wherever a like constitutional provision prevails, it is the uniform course of judicial decision, that in criminal prosecutions, upon all matters or questions of fact triable by jury, the accused or his counsel must be heard; and that the court, whatever may be the opinion it entertains of the clearness, weight, or conclusiveness of the evidence, cannot deny or withhold the right. But it is generally, if not universally conceded, that the court has, and of necessity must have, a discretion in regulating the exercise of the right; or otherwise, without'benefit to the accused, it might be abused, and perverted into ' a hindrance or obstruction to the administration of justice. The discretion is not irrevisable; it is subject to revision in a higher tribunal, and if it appears that it was not justly, prudently exercised, there would be a reversal of the judgment of conviction. — Yeldell v. State, 100 Ala. 26. This case is republished, 46 Am. St. Rep. 20, accompanied by an elaborate note by Mr. Freeman, in which the authorities are collected, and the subject discussed exhaustively. The discretion is not mere power to be exercised because it exists; nor is it to be exercised capriciously or arbitrarily ; and in its exercise, it should always be born in mind, that it is a high constitutional right of the accused, it is proposed.to regulate. — Cooley Con. Limitation, 409. There can be no fixed, defined rule announced; each particular case must rest on its own peculiar facts and circumstances. That which in one case would be a reasonable limitation, in another, might be unreasonable, unjust, working injury to the accused. The number of the witnesses examined, the character of the’evidence, the time consumed in the trial,-the duration of the term of the court, and other matters, should be 'deliberately considered. ” In the present case, not computing, witnesses as to character only, the State exam - ined eight witnesses, and including his own examination,the'defendant examined fourteen. It cannot be said the facts, are- unusually complicated or involved; or that there.''is unusual conflict in the evidence, as to material, relevant facts.'-i.Nor does it appear that in argument, Counsel for tips defendant occupied the time allotted to them; or that having occupied it, they requested an extension of time, in order to present fully the case of the defendant. If it were shown affirmatively, that keeping within the boundaries of legitimate argument, the time had been occupied, and there had been a refusal to extend it, the extension having been claimed as necessary to the full defense of the defendant, a different question would be presented, upon which an expression of opinion is not necessary. — Dille v. State, 34 Ohio 617; s. c. 32 Am. Rep. 395; Wingo v. State, 62 Miss. 311. We have before us a mere general exception to the order of the court made in advance of the argument, without the statement of any fact indicating that the counsel for the defendant did not find the time allotted sufficient for all the purposes of a full defenses.- The rule is general, that error must be affirmatively shown — it cannot be presumed ; we cannot say thé defendant suffered injustice by the limitation of the argument. — Kizer v. State, 12 Lea, (Tenn.) 564; Williams v. Commonwealth, 82 Ky. 644.

11. It was proper to restrain the counsel of the defendant from the proposed argument to the jury, that the failure of the State to examine Boman as a witness, was a circumstance for tlreir consideration. The argument-was not legitimate whether applied to.the State or to the defendant, and with equal propriety, if there had been propriety in it, it could have been applied as well to the one, as to-the other. Boman was in court, as accessible to the one party as to the other; and all that can be properly said, is, that neither party deemed it necessary to place him on the stand, adding his testimony to that which had been adduced. — Bates v. Morris, 101 Ala. 282; Jackson v. State, 77 Ala. 18.

12. There are twenty-one exceptions to the- refusal of instructions requested by the defendant. We do ,not propose to consider these instructions in the order in which they appear in the bill of exceptions, but as far as practicable to consider them in reference to the particular subjects they involve. The general affirmative instruction, that if the evidence was believed, the jury must find the defendant not guilty, was requested and refused. • The argument in support of the instruction is, that there was no evidence proving the' name of the deceased as laid in the indictment — or rather, that the only evidence was of a name variant from-that charged. The evidence of the name was very slight and does not seem to have been adduced for the purpose of identifying the deceased. An indictment for homicide, “must be so certain as to the party against whom the offense was committed, as to enable the prisoner to know who that party is, and what charge he is called on to answer.” Whart. Horn., § 796. The prosecutor must prove the name; and at common law, a variance in the name, or identity of the party, entitled the prisoner to an acquittal, though the acquittal was not a bar to a subsequent ipdictment, stating the name correctly, or if that was unknown, otherwise identifying the deceased. — Whart. Horn., § 801. The statute authorizes an amendment of the indictment in this respect, by the consent of the defendant; if he will not consent, he is not entitled to a verdict of acquittal, but the prosecution may be dismissed and a new indictment preferred. — Cr. Code of 1886, §§ 4389-90; Page v. State, 61 Ala. 16. On another trial, there will be, doubtless, fuller evidence of the name of the deceased, and we pass the further consideration of this instruction.

13. It was not essential to a conviction of the defendant, as is asserted in one or more of the instructions, that it should be shown he and Evans acted jointly in the commission of the homicide. If the defendant alone committed the homicide ; if Evans did not aid or abet in its commission, there could be properly a conviction of the defendant, as if he alone were indicted. Offenses of this character are several as well as joint; and one defendant may be acquitted, and another convicted; ox-one may be found guilty axxd subjected to severer punish - mexxt, than may be visited oxx another, who is also found guilty. — Whart. Cr. Pl. & Pr., § § 312-14; 1 Bish. Cr. Pr., § § 463-476; 9 Am. & Eng. Encyc. of Law, 645, § 8.

14. In all criminal prosecutions, whether of felony ox-misdemeanor, the accxxsed may give evidence of his previous good character, having referexxce axxd analogy to the subject of the charge, xxot oxxly whexx on the other-evidence a doubt of gxxilt exists, but evexx to generate such doubt. While this is true, instructions to a jury should not single oxxt, or dissociate from the other evidence, the evidence of good character. The verdict of the jury ought to be based oxx the exxtire evidexxce ; and when the good character of the accxxsed is proved, it is for the jury to pronounce, whether considering it in connection with the other evidence, there is reasonable doubt of guilt. — Paul v. State, 100 Ala. 136; Goldsmith v. State, 105 Ala. 8; Scott v. State, Ib. 57. *The instruction requested was so framed as to dissociate the evidence of good character from the other 'evidence, and was properly refused.

15. The fact that a witness out of court, or upon a former examination, has made statements, as to a material fact, variant from his testimony on the trial, affects his credibility; the extent to which it is affected, it is the province of the jury to determine ; and it may be proper for the court so to instruct the jury. The instructions on this point which were requested' are faulty in several respects. The first asserts, or rather raises as matter of inquiry, the fact that one or more of the witnesses for the State, on a former investigation of the case, had made statements variant from the evidence delivered on the trial. We find in the record no evidence of such contrariety of statement on a former investigation of the case, and the absence of such evidence rendered the refusal of the instruction proper. Instructions must be based on the evidence; and an instruction requested, raising an inquiry as to matter of fact, of which there is no evidence, is erroneous. This instruction is in another respect faulty; it does not predicate that the contrariety of statement was in reference to a material fact. “It is not.every contradiction of a witness which has the effect to impeach. The contradiction must be on a material point.” — Cauley v. State, 92 Ala. 71. The other instruction, so far as it relates to this point, is subject to the objection that it does not confine the supposed impeachment of the witnesses for the' State to facts material. It is also an invasion of the province of the jury. Witnesses may be impeached because of bad character ; or by disproof of their testimony in some material particular, or as to some material fact.; or because of the contrariety of their statements ; but they are not absolutely discredited. The jury may find much in their evidence to credit, and it is their province to determine, in view of all the evidence, the witnesses whom they will credit or discredit; or the parts of the testimony of any witness they will credit or discredit. — Grimes v. State, 63 Ala. 166; Moore v. State, 68 Ala. 360; Childs v. State, 76 Ala. 93; Jordan v. State, 81 Ala. 20; Harris v. State, 96 Ala. 24. The instruction would most probably have impressed the jury with the idea that the impeachment of one or more of the witnesses for the State absolutely discredited them. Beside, the reasonable doubt, to the benefit of which a defendant is entitled, must spring from a fair, deliberate consideration of all the evidence, and it would be essentially wrong for the court to say to the jury, that a particular fact, dissociated, disconnected from all other evidence, may or would generate it. • Such an instruction would be directed to the effect and sufficiency of the evidence, and calculated to divert the attention and consideration of the jury from all other than the particular evidence to which it referred. — Jordan v. State, 81 Ala. 20.

16. The instruction requested, that “unless the evi-. dence against the defendant should be such as to exclude to a moral certainty every hypothesis but that of - his guilt, the jury must find him not guilty,” is substantially, if not literally, an instruction which was approved in the two cases, Riley v. State, 88 Ala. 188; Riley v. State, Ib. 193. It is the form of instruction which prevailed in our courts for a long time. The more recent decisions have pronounced it erroneous, because of its want of precision and of its tendency to mislead the jury. It is not' every hypothesis of innocence, reasonable or unreasonable, possible or imaginary, the evidence must exclude; but only such hypotheses as are reasonable, springing from a consideration and comparison of the entire evidence. ' The former decisions approving the form of instruction before us are not regarded as- authoritative, hud many of them have been expressly overruled. — Garrett v. State, 97 Ala. 18; Webb v. State, 106 Ala. 52.

17. .Two instructions .requested and refused; relate to threats against the defendant shown to have been uttered by the. deceased. The difference in the instructions is, that the one is silent as to the communication of the threats, and the other, conforming to the evidence, predicates that they were not communicated to the defendant until after the homicide. - Each asserts that the jury may look to or''consider such threats, to aid them in determining who was the aggressor in the difficulty terminating in-the homicide, thereby to generate a doubt of the guilt of .the defendant., Without considering whether the case presents any of the categories or conditions in •which evidence of threats communicated, or uncommunicated, is admissible, or if such evidence is received, whether it should exert any influence on the finding of the jury, for obvious reasons, these instructions were properly refused. Any instruction singling out a particular fact, or a particular défensive theory, and which invites the jury to base the verdict on that fact or theory alone, should be refused. The tendency of such an instruction is, the concentration of the attention and deliberations of the jury upon' the particular fact or theory, to the exclusion-of a fair, just examination of the evidence in its entirety. It is an instruction, in its last analysis, upon the effect and sufficiency of the evidence, which should be avoided. — Jordan v. State, 81 Ala. 20, 33; Prince v. State, 100 Ala. 144.

18. An instruction requested and refused, is in these words : “If the jury believe from the evidence, that the deceased was in a house not his own house, and that he was only boarding there temporarily, and that his house and where his family resided was at another place, then he could not be protected as being in his own -house.” The homicide was committed in • the dwelling house of Alice Palmer, the daughter-in-law of the deceased, her husband being in the insane asylum. In pursuit of - his occupation.as a blacksmith, the deceased was working in the immediate vicinity, and for several weeks had been living in the house; his home where his family resided-being some ten or twelve miles distant. The purpose of the instruction, interpreted in the light of the evidence, was .to impress the jury with the idea that the deceased was without legal right to resist and prevent trespasses inland-upon the house, or assaults, actual or menaced, upon himself, or any of its inmates, in the same manner, and to the same extent to which he could have made resistance in-his own dwelling. The instruction was erroneous and was properly refused. The law1 has been -long settled, that a guest in a dwelling house is entitled to the protection the law'affords to the owner or more permanent occupant. He may repel trespasses in and upon the house, or repel assaults, actual or menaced, as if- he was under his own roof and within his own doors. — 1 Bish. Cr. Law, § 877; 1 Whart. Cr. Law, § 505; Curtis v. Hubbard, 1 Hill (N. Y.), 336; People v. Hubbard, 24 Wend. 369; Scribner v. Beach, 4 Denio, 448; Gordon v. Clifford, 28 N. H. 416. Cowen, J., said in Curtis v. Hubbard, supra: ‘ ‘The defendant was a mere guest, yet he was there on a visit to his brother’s house, and might on this ground, without his brother’s request, have interposed and prevented the sheriff from violating the house in any way. Pro hac vice, it was his own home. ’ ’ In Gordon v. Clifford, supra, it is said: “The effect of the decisions seem to be, that all who have for the time being a legal domicile in the house, all who have a right to remain in it, will be protected.” In the section to which reference is made, Mr. Bishop declares as the true doctrine, “that whatever one may do for himself, he may do for another. The common case, indeed, is, where a father, son, brother, servant or the like protects by the stronger arm, the feebler. But a guest in a house may defend the house ; or the neighbors of the occupant may assemble for its defense; and on the whole, though distinctions have been taken, and doubts expressed, the better view plainly is, that one may do for another whatever the other may do for himself.” It is not within the limits or scope of the instruction, to consider the degree of force the deceased could rightfully employ in the resistance and prevention of a trespass in and upon the house, or in repelling an assault, actual or menaced. The house was not defenseless, nor dependent wholly on the defense its permanent occupant was capable of making. The deceased was there rightfully, and had the legal right to defend it and its inmates, not resorting to greater force than the necessities of the defense required ; and it is a denial of this right the 'instruction involves.

19. The remaining instructions, in varying forms, invoke for the defendant a plea of self-defense. The instruction numbered 25, asserts the proposition that if the defendant was reasonably free from fault in bringing on the difficulty he could successfully invoke the plea. The instruction marked C. commingles this proposition with other propositions. This court has strenuously insisted upon, and vigorously enforced the doctrine, that the plea of self-defense is not available to a defendant who is not free from fault in the creation of a necessity to take the life, or to do grievous bodily harm to another. — Holmes v. State, 100 Ala. 80. In Johnson v. State, 102 Ala. 19, it is said: ‘ ‘This doctrine is too important, too conservative of human life and of good order, to allow it to be frittered away; ’ ’ and this was said in commenting on an instruction predicating the right to self-defense on a reasonable freedom from fault in provoking or encouraging the difficulty. This expression, “reasonably free from fault, ’ ’ had been employed in some of our previous decisions, it may be inadvertently, rather than intentionally. Whatever may be true in this respect, the more recent decisions have corrected the expression, and have settled, as is said in McQueen v. State, 103 Ala. 17, that “the law admits of no qualification of this requirement. The defendant must have been free from all fault or wrongdoing, on his part, which had the effect to provoke or bring on the difficulty.” There was no error in the refusal of these instructions.

20. The proposition, upon which, it may be inferred, it was intended to báse the instructions numbered 6, 18 and 30, is, that the entry of the dwelling, the scene of the homicide, by the defendant and his companions, without force, through the open door, was a mere civil trespass. As it was only a trespass, the deceased could not lawfully repel or prevent it by the use of a deadly weapon, and as for repulsion or prevention, he resorted to the use of such weapon, the right of defendant to defend himself against an attack from the deceased was not lost or forfeited by reason of the wrongdoing in the commission of the trespass. The bill of exceptions purports to contain all the evidence, and a summary of it, so far as it may pertain to or be involved in these instructions, is essential to their proper consideration; distinguishing the evidence which is without conflict, from that which may be said to be matter of controversy or dispute. The facts as shown by the bill of exceptions, about which there does not seem to have been conflict in the evidence, are, that by concert, the defendant and his companions, Evans and Boman, went to the dwelling house in the night time ; they gave no ■ notice of their approach, and made no request for permission to enter ; and if their purposes were peaceful, of such purposes they made no announcement. The first notice of their presence the inmates of the house had was their appearance in the door, the defendant and Evans having pistols in their hands, openly, visibly. A difficulty ensued in which the deceased lost his life.

’The evidence on the part of the prosecution, •'which may not, as -to the occurrences at the dwelling, be harmonious or consistent with the evidence on the .part of the defense, tended to show -that while there was no breaking or irruption of the house ; while the entry was not forcible, it was disorderly, attended by exclamations or salutations not usually accompanying a respectful or friendly'entry of a dwelling. The deceased ordering the intruders to make their business known or to leave, the defendant and Evans threw their revolvers in his face, .or presented them in shooting distance of his person. Thereupon the deceased seized his gun and pistol, and was slain in the ensuing difficulty. . We are not passing on thé credibility or sufficiency of the evidence ; that lies within the province of the jury. The summary of facts, collected from the bill of exceptions, is intended only to render intelligible the discussion of these instructions.

Precision and definiteness is an indispensable element of instructions to a jury; and instructions requested, wanting in this element, are .always properly refused. Thompson Charging Jury, 119, § 89; 1 Brick. Dig. 339, §59. In Hughes v. Anderson, 68 Ala. 280, 286, it was said by Stone, J.: “Charges to juries should be made ■up of clear and distinct legal principles, without involvement, and free from redundant verbiage or other confusing elements.” It is■ not without indulging much of ■inference and of argument, that the legal proposition supposed to underlie these instructions may be evolved from them. Whether the jury would evolve it is matter of uncertainty, and of conjecture and speculation. .Such instructions, are more calculated to confuse and ■perplex the jury, than to-enlighten and aid them in .their deliberations. In other respects the instructions are objectionable. They ignore, withdrawing from the consideration of the jury, the'time, the manner, and the circumstances attending the entry of the dwelling ; and ■the''evidence for the prosecution as to the hostile acts- and demonstrations of the defendant and of Evans subsequent, to the entry, after they were within the house. These occurrences were the causa causans of the tragical result, and the attention and consideration of the jury should, not be diverted from them.

It will be observed .of. the sixth instruction, ■ .that it limits the inquiry of the. jury to the acts and conduct of the defendant when ' he entered the house, diverting attention from his subsequent acts and conduct; and that it disconnects Mm from his companions, who were with him by concert. The other instructions likewise separate him from his companions and their acts, and direct inquiry to his purposes in going to the house. The. occurrences at and in the house are the controlling matters of inquiry, rather than the purposes he. may have had in view in going there, which others could know only from these occurrences. The infirmities, of these instructions to which we have adverted, necessitated their refusal. — Goodson v. Pickett, 78 Ala. 301; Louisville & Nashville Railroad Co. v. Webb, 97 Ala. 308; Wadsworth v. Williams, 101 Ala. 364.

Passing from the infirmities affecting these instructions, the more important question remains, whether the defendant is in a condition to invoke the plea that the homicide was committed in self-defense. The solution of this inquiry depends more particularly, and primarily, not, as these instructions indicate, upon the acts and conduct of the deceased, but upon the prior acts and conduct of the defendant and his companions. They were the aggressors, the guilty wrongdoers, provoking and inciting the subsequent acts and conduct of the deceased, whatever they may have been, which are supposed to have created the exigency or necessity for the taking of life. The entry of the house, through the open door, may have been a civil trespass, which if it stood alone, not attended by the fact that it was in the night time, by mén openly and visibly bearing deadly weapons in their hands, who gave no notice'of their approach, made no request for permission to enter,- and no announcement of peaceful purposes, could not, in the first instance, have been repelled or prevented by the employment of deadly weapons. The law guards with great jealousy and vigilance the peace and security of the dwelling, extending to it a degree of protection, the equivalent to that extended to the person. — 1 Addison on Torts, (Wood’s ed.), 398. A trespass upon it, an •invasion of its quiet enjoyment, is more than a mere trespass upon property. The deceased was in the house rightfully ; for the time being it was his home ; and lawfully he could do, for the protection of its peace- and security and of its inmates, whatever .the more perma■nent occupant could have done rightfully. A stranger, or a casual visitor, coming without invitation or permission, for any reasons satisfactory to himself, the occupant of a dwelling may réquire to depart, and if he persists in remaining, may use the necessary force to eject him. The kind and degree of force depends upon the conduct of the intruder. — 1 Whart. Cr. Law, § 501; Com. v. Clark, 2 Metc. (Mass.) 23; Pennsylvania v. Robertson, 1 Addison, 246; State v. Lazarus, 1 Mill, (S. C.), 12. In cases like the present, an intruder into a dwelling, armed with a deadly weapon, who does not depart, upon warning, leaves no room for the application of the maxim, molliter manus imposuit. — State v. Davis, 80 N. C. 351; State v. Taylor, 82 N. C. 554. If the deceased seized his gun and pistol, and warned the defendant and his companions to leave the dwelling, the exigency and necessity for a resort to such weapons was created by the prior exhibition of such weapons, in an apparent condition for immediate use, by the defendant and Evans.

Again, the deceased had the legal right, in defense of the peace and security of the dwelling, or of himself, or its inmates, to prevent the commission of a felony; and for the purposes of prevention and defense, could rightfully employ the necessary force, even to the taking of the life of the aggressor. The deceased and the inmates of the house were without fault; they had not provoked or incited the invasion of the dwelling, and had given no cause of offense to the defendant or his companions. The appearance of the defendant and his companions in the dwelling, in the night time, two of them having'in their 'hands- deadly weapons, their coming being unannounced, and their presence and purposes unexplained, may have created in the mind of the deceased, the reasonable belief, well founded and honestly entertained, that their purposes were felonious ; that there was imminent peril to him, and to the other inmates of the house, of loss of life or of grievous bodily harm, which could be averted only by the taking of the life of the intruder. Of the existence of these facts, the jury were the judges ; if they find them to exist, the killing of the intruders by the deceased, would have been homicide in self-defense. — 1 Whart. Cr. Law, § 465; §§ 503, 506; People v. Flanagan, 60 Cal. 2; s. c. 44 Am. Rep. 52. In whatever aspect or phase the case may be considered, as it is now presented, these instructions were properly refused.

21. The instruction numbered 18i is objectionable in many respects ; it is an invitation to the jury to disregard much of the evidence, as well as that which is free from conflict, as that which may be matter of controversy, and the natural, logical inferences from it; and if it had been given, to prevent it from misleading and confusing the jury, explanatory and additional instructions would have been necessary. The instruction marked A. was properly refused for reasons we have stated in the discussion of the instructions numbered 6, 18 and 80. Beside, it is rather remarkable, that innocence of purpose and freedom from fault should be predicated from the invasion of a dwelling house, in the night time, with an exhibition of deadly weapons, though it may have been the dwelling of a fallen woman, converting it into a scene of boisterous disorder. The instruction marked C. relates primarily to guilt of murder, and, as there was a conviction of manslaughter only, need not be considered.

22. The instructions numbered 16 and 27, may be considered in connection. They are founded on the proposition that though the defendant may have been the aggressor, may have incited and provoked the difficulty, he was withdrawing and retreating from the. contest he had created, and while withdrawing and retreating, he was pursued by the deceased, and the pursuit created a necessity for the taking the life of the deceased to save his own, or to save himself from grievous bodily harm. The general rule, that an aggressor, one who provokes or incites a difficulty, cannot excuse or justify himself in taking life, is not of absolute and universal application. An exception to it exists, when in good faith he abandons the difficulty, retires or retreats from it, clearly announcing his desire for peace ; then if he be pursued, his right to defend himself is revived. — 1 Whart. Cr. Law, § 486; 1 Bishop Cr. Law, § 871; Parker v. State, 88 Ala. 4; Stoffer v. State, 15 Ohio St. 47; s. c. 86 Am. Dec. 470; Cases on Self Defense, 213. It will be observed, neither of these instructions direct inquiry to the important, controlling fact,-without the existence of which the exception to the general doctrine can have no room for operation; and that is, whether Die acts and conduct of the defendant manifested, so clearly manifested that peace was his desire, that to secure it, he bad abandoned and was retiring from the contest, removing from the mind of the deceased all reasonable apprehension of a continuance of the difficulty and of the imminent peril in which he was involved. Less than tliis cannot give rise to the exception, or the assailed would be subjected to the perils of colorable retreats, intended to gain “fresh strength, or some new advantage.” The deceased did not pass beyond the door of the dwelling; he was slain at or near the door ; and that which is termed pursuit, was the following of the defendant and Evans within the room of the dwelling they had entered. It was his right to follow them, so long as they were within the dwelling with arms in their hands, and the appearances of imminent peril, they created, were continuing. Notes to Stoffer’s Case; Cases on Self Defense, 231. "Without additional instructions, directing the attention of the jury to a consideration of these inquiries, the instruction may have misled them ; and as constructed, the instructions do not assert a correct proposition of law. — Parker v. State, supra.

We have examined all the exceptions, and the only error we have found is that pointed out in the 9th paragraph of this opinion. The error compels a reversal of the judgment and a remandment of the cause. The defendant will remain in custody, until discharged by due course of law.

Reversed and remanded.