Crumpton v. State , 167 Ala. 4 ( 1910 )

SIMPSON, J.

The appellant was indicted for murder in the second degree, and convicted of manslaughter in the first degree.

A witness for the state, Mrs. Green, who witnessed the shooting, and who testified that just before the firing Odom (the man who was shot) was standing with his hand in his hip pocket, and seemed to- be moving-his hand, was asked on cross-examination if said Odom did not, on the day before he was killed, get a pistol from her husband. The state objected, and the objection was sustained. There was no error in sustaining this objection. There was no evidence or offer to prove that the defendant knew of the circumstances referred to. — Robinson v. State, 108 Ala. 14, 15, 16, 18 South. 732; Wilson v. State, 140 Ala. 43, 50, 37 South. 93.

The cases of Wiley v. State, 99 Ala. 146, 13 South. 424, Linehan v. State, 113 Ala. 71, 82, 83, 21 South. 497, and Naughter v. State, 116 Ala. 463, 466, 23 South. 26, all relate to threats brought to the knowledge of the defendant, or to facts known by him.

There was error in overruling the objection to the question to the witness Davidson as to a statement made to said witness, shortly before the difficulty, which referred to a threat. This court, in the Roberts 'Case, modified the former rule that uncommunicated threats are not competent evidence, to the extent that threats recently made are admissible, “if the deceased had sought a conflict with the accused, or was making some demonstration or overt act towards the accomplishment or perpetration of such threats. In other words, the circumstances in evidence must properly raise a case of self-defense.” Also, that they are admissible in corroboration of threats which have been communicated. Also, “where it is doubtful, from the testimony, which party commenced the affray, threats of this character are admissible, as in the nature of facts, to show who was probably the first assailant.” — Roberts v. State, 68 Ala. 156, 164. In that case it was proved that the deceased was a violent, overbearing, and vindictive man; that he had made threats one or two hours before the killing, had loaded his gun, said he would kill the defendant before night, and gone to his store. The Roberts Case was followed in a case where there was “obscurity in the testimony relating to the conduct of the parties immediately preceding and attending the fatal act,” and where on hearing the report of the pistol a witness looked and saw the deceased with “his arm extended, pistol in hand, pointing towards the door” where the accused had last been seen; this court holding that threats made by deceased shortly before the difficulty, while loading his pistol, were admissible, as tending to show his animus, and as to which commenced the difficulty. — Green v. State, 69 Ala. 6, 9. Again, where evidence showed that B. and D., on their way to defendant’s store, threatened to kill him, and it was communicated, to the defendant, and according to the defendant’s evidence, they did in fact go there and malee an attack on him, he was allowed to prove also that they had laid in wait for him the night before, as tending to show their motive in going to the store, as corroborative- of the communicated threats, and to aid the jury in determining who was the aggressor. — Gunter v. State, 111 Ala. 24, 28, 29, 20 South. 632, 56 Am. St. Rep. 17. In a later case this court said: “There are cases involving self-defense where, under the rules laid down in Roberts v. State, uncommunicated threats are admissible as tending to show which of the parties to the difficulty was the aggressor, and also as showing the animus of an attack made on a defendant, and such threats are sometimes provable as corroborative of evidence of other threats which were communicated; but there was no evidence that defendant was really being attacked by Brown, and threats of which he was ignorant could not have any agency in inducing him to apprehend an attack,” etc. — Webb v. State, 135 Ala. 36, 41, 33 South. 487, 489. In another case it was held that uncommunicated threats are inadmissible, unless there is a question in the case, as to whether the deceased was the aggressor, or made hostile demonstrations, etc. — Wilson v. State, 140 Ala. 43, 50, 37 South. 93.

Where there are no communicated threats proved, these uncommunicated threats are admitted in evidence, not for the purpose of furnishing an excuse or justification to the defendant — for if he did not know of a threat it could not operate on his mind — but merely for the purpose of aiding the jury in ascertaining the animus of the deceased, so as to form a conclusion as to whether he was the aggressor.

In the present case it was “doubtful from the testimony which party commenced the affray.” There was “obscurity in the testimony relating to the conduct of the parties immediately preceding and attending the fatal act.” There was “a question in the case as to whether the deceased was the aggressor, or made hostile demonstrations. The threats were admissible for the purpose of showing which party was the aggressor.

There was no error in overruling the objections in regard to the introduction of the clothes of the deceased.

No injury could occur to the defendant by the evidence of Odom’s having been a marshal, and it was not reversible error to admit it.

The same is true with reference to sustaining the objection to the question to the witness Staggs as to the protest of the citizens against his being made marshal; and, besides, it was hearsay.

There was no error in sustaining the objection to the question to the defendant as a witness as to why he got on the other track, as he could not be asked to testify as to his motives.

Charge 1, requested by the defendant, is invasive of the province of the jury, and was properly refused.

In the cases referred to by the attorney for appellant the court was not requested to charge the jury what the evidence did prove.

There was no error in the refusal to give charges 2 and 8, requested by the defendant. They were misleading, in not stating the conditions under which the state is called on to prove freedom from fault. — Etheridge v. State, 141 Ala. 29, 30, 31, 37 South. 337; McBryde v. State, 156 Ala. 44, 55, 47 South. 302.

There was no error in the refusal to give charge 4, requested by the defendant. It asserts the strange proposition that the state must prove that there was no reasonable means of escape, in order to convict the defendant.

Charges 5, 9, and 15, requested by the defendant, are arguments and were properly refused.

Charges 6 and 8 were properly refused. Each fails to hypothesize the belief of the defendant that he was in imminent danger of death or great bodily harm, and, besides, charge C, given at the request of the defendant, substantially covers charge 6, if not also charge 8.

Charge 10 was properly refused; juries are to try and determine cases according to the laAV and the facts, and not according to their opinion as to Avhether public peace and good order will he promoted by a conviction.

Charge 11, requested by the defendant, is incomplete, states no proposition, and Avas properly refused.

Charge 12 (being the general charge) was properly refused.

Charge 13, requested by the defendant, is covered by charge C, given at the request of the defendant. Hence there Avas no error in refusing to give it.

Charge 14, requested by the defendant, was properly refused. As this charge Avas refused by the court, we cannot say Avhether or not the court had defined the essentials of self-defense.

Charge 16, requested by the defendant, was properly refused. It is not a question as to what the evidence ■should be, but what it is; nor is it every hypothesis that must be excluded, but every reasonable hypothesis.

Charge 17 was properly refused. It asks for the defendant an acquittal, and does not hypothesize all of the elements of self-defense.

The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.