Jones v. State , 13 Ala. App. 10 ( 1915 )

BB.ÓWN, J.

(1) The fact that the deceased when he left home had money in his possession was pertinent, as tending to show motive for the crime, as ivas the testimony showing that deceased exhibited his purse at Snellgrove’s house and made statements with reference to the value of its contents in the presence of the defendant, and this testimony was properly allowed to go to the jury. While evidence showing motive is not indispensable, and therefore not an element of the burden of proof resting on the prosecution, motive is always a legitimate subject of inquiry on the trial of one charged with crime, and this is especially true where the evidence tending to connect the defendant with the commission of the crime is wholly circumstantial.—Brunson v. State, 124 Ala. 40, 27 South. 410; Flanagan v. State, 46 Ala. 703; Baalam v. State, 17 Ala. 451; Overstreet v. State, 46 Ala. 30; Levison v. State, 54 Ala. 528; Faire v. State, 58 Ala. 79; Duncan v. State, 88 Ala. 34, 7 South. 104.

(2) In popular use intent and motive are not infrequently-regarded as one and the same thing, and, while they have the common characteristic of not being susceptible of proof other than by inference arising from the existence of other facts, in law there is a clear distinction between them. Motive is the power which impels action to a definite result; the reason that moves the will and tempts the mind to indulge the criminal intent; while the intent is the purpose to use a particular means to effect the result and accomplish the purpose. The criminal intent is an essential element of the crime, but, when the crime is certainly proven to have been committed by the person charged therewith, the question of motive may be of little or no importance.—Brunson v. State, supra; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193; 28 Cyc. 20; 22 Cyc. 1454, note 15.

(3, 4) The character of the weapon used in accomplishing the death of Etheridge is alleged in the indictment as an unknown fact, and at the time the court allowed. the Avife of the deceased to testify that between 11 and 12 o’clock on the night her husband disappeared she heard loud talking in the direction of and near Palmore’s place, and that she recognized her husband’s voice, and immediately thereafter or during the time of the loud talking she heard the report of a pistol firing in the same direction and locality, no proof had been offered showing the character of the weapon used in accomplishing the death of Etheridge or of the character of the wound on the head of the body found in the woods. That Etheridge was killed by being struck on the head with a pistol, or even shot Avith one, under the indictment was within the issues. (Terry v. State, 118 Ala. 87, 23 South. 776; Terry v. State, 120 Ala. 287, 25 South. 176), and the firing of the pistol at the place where the Avitness last heard her husband’s voice was a fact, tending to show that some one had such a Aveap'on at that place, and, if it should be conceded that no further effort was made by the prosecution to develop evidence showing that such weapon was used to effect the death of the deceased, the court properly admitted the evidence at the time it was offered; and if it should be further conceded that tire evidence subsequently admitted shoAving the character of the wound on the head disproved the theory that the wound was inflicted by a blow on the. head with a pistol or a pistol shot, the evidence being competent at the time it was offered, the question of its .relevancy to the issues, as defined by the subsequent proof showing the character of the wound, could only be presented by motion to exclude it, and no such motion was made.

(5) To authorize proof of a declaration made by the defendant after the offense was committed, with reference to the crime, the declaration need not amount to a confession of guilt. All that is necessary is that the statement be self-disserving and of- such a character as, when considered along with the other evidence in the case, reasonably affords an inference of guilt.—Johnson v. State, infra, 68 South. 687; Pentecost v. State, 107 Ala. 90, 18 South. 146; Aikin v. State, 35 Ala. 404; Jones on Evidence, § 236, p. 300; 12 Cyc. 418b; Commonwealth v. Chance, 174 Mass. 245, 54 N. E. 551, 75 Am. St. Rep. 306.

(6) There was no error in receiving the testimony of the witness' Metcalf as to statements made by the defendant to witness when they were speaking of the disappearance of Etheridge and the rumor that a warrant was in the hands of the officers of the law for defendant’s arrest, in connection with which defendant said: “Well, if they get me, they will get me between here and home; I am going home and put my daddy’s mule in the lot and hike and leave.” '

These statements, if believed by the jury, under the rule stated were, when considered in connection with the other evidence in the case, sufficient to afford an inference that they were prompted by. a consciousness of guilt, and the weight to be accorded this evidence was a question for the jury.—Pentecost v. State, supra; Aikin v. State, supra.

(7) The testimony of Mrs. Etheridge as to a conversation between her and the defendant shortly after the disappearance of the deceased, in which she asked the defendant where he last saw her husband, and his conduct on that occasion when she told defendant that he knew where her husband was and his failure to reply, was competent evidence, and the court niled correctly in admitting it.—16 Cyc. 956, 957 (7); Wisdom v. Reeves, 110 Ala. 418, 18 South. 13; Peck v. Ryan, 110 Ala. 336, 17 South. 733; Claflin v. Rosenberg, 101 Ala. 213, 13 South. 272; Bob v. State, 32 Ala. 560; Abercrombie v. Allen, 20 Ala. 281.

(8, 9) The Avitness Moore was offered by the defendant, and testified on direct examination by the defendant that he Avent to the place where the body was found and dug doAvn under the place where the head rested, and found the earth discolored, that it Avas red, and that there was blood there. On cross-examination the court allowed the solicitor to ask the witness if, as a matter of fact, a dead body Avas thrown on the ground and remained there until decomposition took place,. Avhether it would not cause a discoloration of the ground. The Avitness ansAvered: “Yes; but it would not turn the ground red.” It' is now insisted that this was error because the Avitness had not qualified as an expert. If the Avitness Avas competent to testify that the discoloration of the ground was caused by blood, he Avas certainly competent to answer the question propounded to him by the solicitor, and, whether he was or not, the defendant, having offered him as a competent Avitn ess to testify on the subject, Avas in no position, after he had proven what he thought was favorable to his case, to object to his competency to give testimony of an expert nature concerning the same matters on cross-examination. By offering the witness the defendant not only represented him to he credible, bnt competent to testify to the facts defendant sought to prove, to wit, Avhat had caused discoloration of the earth Avhere the body lay. The cross-examination was proper as testing the knowledge of the witness as to the matters previously deposed to by him, and the objection Avas properly overruled.

(10) The evidence shoAving that the head Avas severed from the body Avlien found Avas properly admitted.—Terry v. State, 118 Ala. 86, 23 South. 776; Terry v. State, 120 Ala. 287, 25 South. 176.

(11) The record does not affirmatively shoAV that the failure of the prosecution to prove the venue was brought to the attention of the trial court before the argument of the case Avas concluded, and as for that matter at all, and, in the absence of such showing, the trial court Avill not be put in error for refusing the affirmative charge.—Circuit court rule 35 (175 Ala. xxi).

(12, 13) Malice is an essential ingredient of murder.—Mitchell v. State, 60 Ala. 26. As. a rule, it is an inferential fact not. susceptible of positive proof. It arises by inference from other facts proven, and in the trial of cases of homicide is to be drawn by' the jury, unless the evidence sIioavs, without room for adverse inference, that the killing Avas intentional, and was accomplished by the use of a Aveapon which, as a matter of laAv, may be pronounced a deadly weapon.

(14, 15) Where the killing results from the intentional use of a deadly Aveapon — that is, a AAreapon Avhich the court may pronounce such as a matter of la.Av, such as a gun or pistol of sufficient caliber and carrying force as to produce death — and the evidence which proves the killing does not- at least afford room for an inference rebutting the presumption of malice arising from the use of such weapon, it is then incumbent on the defendant to rebut that presumption by other evidence. If he fails in this burden, the presumption is conclusive against him, and no duty devolves upon the trial court to instruct the jury on any degree of homicide less than murder.—Gafford v. State, 125 Ala. 1, 28 South. 406; Hornsby v. State, 94 Ala. 66, 10 South. 552; Hadley v. State, 55 Ala. 37; Mitchell v. State, supra; Gibson v. State, 89 Ala. 121, 8 South. 98, 18 Am. St. Rep. 96; Rogers v. State, 117 Ala. 9, 22 South. 666.

(16) But, where the evidence which proves the killing rebuts the presumption of malice, or affords room for an inference to be drawn by the jury that tends to rebut the presumption, or where the evidence is wholly circumstantial, and the character of the weapon, the circumstances attending the homicide, and the motive therefor rest in inferences to be drawn by the jury from the circumstances proven, the' court should give in charge to- the jury the law on all degrees of intentional homicide.—Fowler v. State, 161 Ala. 1, 49 South. 788; Hornsby v. State, 94 Ala. 66, 10 South. 522; Hall v. State, 40 Ala. 706; Reeves v. State, 186 Ala. 14, 65 South. 160. The reason for this is clear. In such cases malice, which is an essential ingredient of murder, must be inferred from the character of the weapon .used and the' circumstances attending the homicide, and, where, there is evidence justifying an inference that- the killing was not prompted by malice, or where the nature and character of the weapon and the circumstances attending the homicide rest in inference, it is the province of the jury, and not of the court, to pass on the evidence and entertain the inference of malice or not, as, in their judgment, the whole evidence may warrant.—Hornsby v. State, supra; Smith v. State, 68 Ala. 430.

The trial court therefore erred in disregarding the defendant’s request to charge, the jury as to the law of manslaughter in the first degree, and for this error the judgment must be reversed.

(17) The law does not impose on the prosecution the burden of proving motive for a crime, and therefore a failure to prove motive does not raise any presumption in favor of the defendant, as asserted in refused charge 4.—Stone v. State, 105 Ala. 60, 17 South. 114. Proof that the accused committed the criminal act furnishes all the evidence of motive that the law requires.—Brunson v. State, supra; Clifton v. State, 73 Ala. 473.

(18) Charges 14 and 36 are of a class that have been repeatedly condemned.

(19) Charge 15 was properly refused.—Key v. State, 4 Ala. App. 76, 58 South. 946.

(20) Charges 31, 38, 40, 42, and 48 ignore the tendencies in the evidence that the defendant, was an accomplice of some other person who might have actually inflicted the blow causing the death of the deceased, and were properly refused.

(21) Charge M is not complete within itself, and was well refused for this reason.

(22) Charge N does not state the law correctly, and, although it may have been moré favorable to the prosecution than a charge embodying a correct statement of the law, yet the court was under no duty to give it. The proposition which the charge undertakes to state is: “An actual intention to take life is not an essential element in this offense [manslaughter in the first degree], or, indeed, in murder. The voluntary setting in motion or application of unlawful force, * * * whereby death ensues, will suffice to supply the legal elements of evil intent, however free the action may be from actual purpose to kill.”—Lewis v. State, 96 Ala. 10, 11 South. 259, 38 Am. St. Rep. 75; Fowler v. State, 161 Ala. 6, 49 South. 788.

“To constitute manslaughter in the first degree, there must be either a positive intention to kill or an act of violence from which ordinarily, in the usual course of events, death or great bodily harm may result. It is not necessary that the perpetrator intended or willed the death of the party.”—Reynolds v. State, 154 Ala. 14, 45 South. 894.

(23) An examination of the charge shows that it assumes that the act resulting in the death of Etheridge was an act of violence or an unlawful act without so stating, and for this reason the charge cannot be approved.

The only error shown by the record is the one above pointed out, and for this the judgment of the circuit court must be reversed.

Reversed and remanded.