Rogers v. State , 117 Ala. 9 ( 1897 )

McCLELLAN, J.

The facts that the deceased, a boy sixteen years of age, carried the daughter of defendant, a girl of thirteen or fourteen years, from Gadsden to Ashville, three or four days before the homicide under a promise of marriage, that he did not marry her, and that leaving her at Ashville he returned to Gadsden two days before the shooting, can neither justify nor palliate the defendant’s act in killing him nor shed any legitimate light on the transaction. And this would be true even had his wrong been more aggravated — even had he debauched the girl, of which there is no pretence. In such case if the mortal blow had been given by the father immediately upon hearing of the Wrong to his daughter, and in the heat of passion engendered by the fact coming to his knowledge, all the facts would have been admissible to eliminate the element of malice from the act by referring it to passion, which had not had time to cool, and thus reducing the homicide to manslaughter. But there is no pretence that the homicide was committed under these circumstances : to the contrary, it affirmatively appears that the defendant came to a knowledge of all the facts — as" full knowledge as he had at the time he shot deceased — two days before the shooting occurred. This court is firmly committed to this view in consonance with long established principles ; and we take this occasion to utterly repudiate what is said in the case of Flanagan v. State, 46 Ala. 703, to the contrary ; and on the point under consideration that case is overruled. — Robinson v. State, 108 Ala. 14. The trial court did not err, therefore, in its rulings on the proposed evidence of the witness Emma Rogers.

The homicide involved here was either murder or justified on the ground of self-defense. There was no occasion for the court to give the law of manslaughter in charge to the jury.

It is most clear to our minds that the charge given ex mero motu by the court, considered as it'must be as a whole, was not only free from error but free from any misleading tendencies. The several exceptions reserved to certain sentences or parts of sentences of the charge are without merit.

There was no evidence adduced in support of defendant’s plea of insanity, and the court properly refused charges requested by defendant on this subject.

Charge 3 was bad for the reason given in Miller v. State, 107 Ala. 40.

Charge 4 correctly states the law. We do not find that it was substantially given in any of the other charges given to the jury by the court at the request of the defendant.

Charge 5 requested by defendant is elliptical, and its refusal may well be rested on this ground. •

Defendant may not have gone to the scene of the homicide with the purpose of bringing on a difficulty, and yet it was open to the jury to conclude from the evidence before them that he did contribute to bring on the difficulty — if indeed there was any difficulty' so far as action or words on the part of deceased were necessary thereto — by the manner of his approach, stealthily, it would seem, and in most threatening attitude.

Charge 6 refused to defendant would have deprived the jury of the right to reach this conclusion.

Charge 7 requested by defendant has been condemned by this court: it is a mere argument.

The j udgment of the circuit court is reversed, and the cause remanded.