Skains v. State

LIGON, J. — Tbe record presents two bills of exceptions, taken by tbe defendants in tbe court below, when on trial on an indictment for an affray. It appears by tbe bill of exceptions certified and sealed at tbe instance of tbe defendant, Skains, that bis co-defendant, Lewis, offered to prove, that, several months before tbe occurrence of tbe affray for wbicb they were then on trial, tbe defendants bad fought together, when tbe former bad attempted to strike tbe latter with a piece of iron, and said if be could get at him be would kill him. To tbe introduction of this proof, without connecting tbe remark used by him on that occasion with tbe affray for wbicb be was then on trial, tbe defendant, Skains, by his counsel, objected. Tbe objec [222] tion was overruled by tbe court, and tbe testimony was allowed to go to tbe jury, to wbicb Skains excepted. I cannot perceive wbat connection tbe conduct and language of Skains on tbe former occasion could possibly have with tbe affray for wbicb be was put on bis trial in tbe court below. Tbe language used by bim contains no threat of wbat be would do in future, but is tbe mere expression of an angry man, debarred of present vengeance by tbe interposition of others, and spoken when tbe party using it was laboring under tbe excitement of recent conflict with bis adversary. There is no proof whatever that connects this rencounter with tbe affray for wbicb tbe parties were on trial, or that tbe latter grew out of tbe former. Tbe two crimes are distinct from, and independent of each other, and if it was desired to punish Skains for bis conduct on tbe occasion of tbe first fight between himself and Lewis, be should have been indicted for it; but it is not allowable to prove it, for tbe purpose of aggravating tbe fine in a case with wbicb it bad no connection, and as to wbicb all proof concerning it would be wholly irrelevant. That it did aggravate tbe fine of Skains in tbe case under consideration, we think is conclusively shown by tbe finding of tbe jury; for tbe difference in tbe amount of bis fine, and that assessed against Lewis, can be reasonably accounted for on no other hypothesis. We think, also, that tbe first charge set out in both bills of exceptions, cannot be supported under tbe indictment in this case. Tbe statute in reference to wbicb tbe charge is given, is in these words: “If any person shall be guilty of fighting-in tbe streets of any city or town, or at any militia muster, or other place public in itself, or made public by any assemblage of people for any purpose whatever, and shall employ or use, during such fight, any fire arms or air gun, by discharging or attempting to discharge tbe same, unless in self-defence, such person shall, on conviction thereof, be fined in a sum not less than one hundred, nor more than five hundred dollars, or be imprisoned in tbe county jail for a term not exceeding six months, or both, at tb® discretion of tbe jury trying such offencé.” Clay’s Dig. 413, § 8. It is evident, from tbe language of this act, tb^t tha Legislature intended to create a new offence, and attach to it a new [223] penalty; when tbis is tbe case, tbe indictment must be framed in reference to tbe statute, and conform either to its letter or substance, before tbe penalty denounced against tbe offender can be inflicted. State v. Click, 2 Ala. 16; State v. Mahan, ib. 340; Worrell v. State, 12 ib. 732; State v. Bullock, 13 ib. 413. Tbe indictment in tbe case under consideration, is in tbe ordinary form of an indictment at common law for an affray, nnd was never intended by tbe pleader to be conformed to tbe provisions of tbe statute above cited. It was, therefore, clearly erroneous for tbe court, by its instructions to tbe jury, to take away or limit their discretion with regard to tbe amount of tbe fine to be assessed in tbe event of conviction. As to tbe charge requested by Skains, it was rightly refused, for tbe reason that it is a charge upon tbe facts of tbe case, and, if given, would have invaded tbe province of tbe jury, to which alone belongs tbe right to weigh tbe testimony and draw deductions and inferences from it, especially where there is a conflict in tbe testimony, as in tbe present case. In such cases tbe court cannot assume, by its charge, that tbe contested fact is proved; tbe jury must judge of tbe credit of the witnesses, and settle that question for themselves. Tbe only remaining question in tbe case, involves tbe exceptions of Lewis to tbe charge asked for by him, and given, with a qualification, by tbe court. That charge is couched in such terms, that we cannot agree upon what interpretation should be given it, and, consequently, wé express no opinion in reference to it. For tbe error in allowing tbe proof objected to by Skains, as recited in bis bill of exceptions, to go to tbe jury, and in tbe charge excepted to by both defendants below, tbe judgment must be reversed, and tbe cause remanded.