Abernethy v. Commonwealth

Chief Justice Sharswood delivered the opinion of the court, November 20th 1882. As this case goes back for another trial it would not be proper for this court to express any opinion on the merits. Although no assignment of error has been filed that the case did not present the element for a verdict of murder in the first degree, we think it right to say that upon that point we entertain no doubt. Indeed, wherever the death is caused by the use of a deadly weapon it must be for the jury to say under the evidence whether there existed “ a willful, deliberate and premeditated ” intention to take the life of the deceased. The first two assignments are not according to rule, but the same questions are well raised by subsequent specification. There was no error in the answers of the court to the fifth, sixth and seventh points of the defendants. Indeed, they have not been insisted on here. The eighth point of the defendant was “that the jury must exclude in the consideration of the case any testimony as to any threats alleged to have been made by defendant against Kain or any other person, except the deceased.” This was refused by the learned court and forms the subject of the sixth assignment. The fatal shot seems to have been fired about half past five or six o’clock of the evening of December 5th 1881, in the barroom of a saloon in Diamond street. The accused had been in and out several times during the day. It would seem that about two o’clock of the same day he had met there a man named Kain, who had a person with him whose name was unknown. A quarrel arose and this person struck Abernethy a blow. He [328] became much excited in consequence, and being to some extent under the influence of liquor, if not actually drunk, he made several threats that he would fix or kill Kain — sometimes adding Kain or somebody, and according to the testimony of one witness that he would kill somebody. All this however was before any quarrel had taken place between Abecnethy and the deceased. When he applied to the witness Thomas Godfrey, for the loan of a revolver, which was about three o’clock, he told him “he was struck next door and he wanted to go down to Kain, to find out who struck him.” There were four other witnesses, who testified to these threats, one of them said that he heard no name mentioned. We think the defendant’s eighth point should have been affirmed. It is true that general threats to kill somebody would be evidence of malice and as such to be weighed by the jury. Had Dwyer’s testimony stood alone and the jury should believe that it was not intended as against Kain or his companion, it might properly have been submitted to the jury as evidence of an intention to piek a quarrel and kill somebody. Such was the case in Hopkins v. The Commonwealth, 14 Wright 9. It is not easy to see how threats against a particular person, with whom the accused had a quarrel, ought to have any weight with a jury as to the malice or intention to kill another person with whom at the time he had no quarrel and whom afterward in a scnffie he killed: State v. Smalley, 50 Verm. 736, 750; Ogletree v. State, 28 Ala. 693, 700. There was no error in the rejection of the evidence offered by defendant as complained of in the seventh assignment. It is clear that the deceased took no offence at the epithet applied to him by the accused, as immediately afterwards they shook hands and seemed on friendly terms. What did seem to have excited the anger of the deceased was Abernethy’s words when he left the back room and which he said that he meant to apply to all who were there. The eighth and ninth assignments may be considered together. William P. Bedell, a witness called by defendant to prove his good character for peace and order .said on cross-examination : “ I know the fact of his (the defendant) being sent to the Reform School.” Q. “You have heard of course why he was sent to the Reform School? A. I did not: I heard rumors on the street that lie went there of his own accord.” The defendant after-wards offered to show by the testimony of his mother and another witness,that he had been abandoned by his father, that he had procured his admission to the Reform School “for the purpose of securing his maintenance and education in the absence of support by his father or any means of her own by which to support him.” The learned judge rejected this evi [329] dence, because the counsel for the defendant did not object to the cross-examination. We think that it ought to have been admitted. The cross-examination grew naturally out of the examination in chief as to character, and could not have been excluded except as mere hearsay. It had come out and would go to the jury, and surely it was competent for the defendant to brush away such a cloud upon his character. The tenth assignment is to the rejection by the court below of evidence that the deceased was a man of quarrelsome disposition. As a general rule undoubtedly such evidence is inadmissible. But where it appears that the defendant and the deceased were on terms of intimacy, and the killing took place in a sudden scuffle, in which there was evidence that the deceased made an assault on the defendant if he did not actually strike him, we think it is admissible as evidence that the defendant may have considered himself as in some danger, and had resort to the weapon not to kill but disable his assailant: Rippy v. State, 2 Head 217; Franklin v. State, 29 Ala. 14; People v. Lamb, 54 Barb. 342; S. C., 2 Keyes 369; Reynolds v. People, 17 Abb. Pr. 413; 54 Barb. 350. The defendant’s objection to the Commonwealth’s evidence as stated in the eleventh assignment was rightly overruled. It was strictly in rebuttal. And the evidence the rejection of which is complained of in the twelfth assignment was merely in effect of a declaration by Abernethy after the killing. Judgment reversed and venire facias de novo awarded.