DeArman v. State

SOMERYILLE, J\ It is a matter resting entirely within the discretion of the trial court, to continue or refuse to continue causes, civil or criminal, and such action can not be revised on error. And the rule applicable to putting the State, in criminal causes, to the admission as to what an absent witness of a defendant would testify, if present, is necessarily the same. The primary court has a discretionary power to require either party to make a proper showing, under oath, as to what he expects to prove by an absent witness, and what diligence he has used to obtain Ins testimony; and if the adverse party refuses to admit what it is alleged such absent witness would swear, the practice is not to continue the cause on account of the absence of such testimony. There is nothing in the action of the court touching these matters which is subject to our review. And if it were otherwise, we are not prepared to say that its discretion has not been exercised, in every particular, so as to be entirely free from criticism. — Peterson v. The State, 63 Ala. 113; Ex parte Jones, 66 Ala. 202 ; Rules of Practice, No. 16, Code, 1876, p. 160. 2. Whether the Circuit Court erred, under the peculiar circumstances of this case, in ordering a special venire of jurors to be summoned for the trial, in accordance with section 4874 of the Code (1876), is one of the questions raised by the record, and urged upon our consideration. It is a sufficient answer to this inquiry, that the court had jurisdiction to grant this order, and it was granted in response to an express demand for such a jury, made by the defendant prior to entering upon the trial; and no exception can be based upon any ruling of a court which was induced by the request or objection of. the party excepting. Our past decisions fully commit us to this salutary principle. Shelton v. The State, 73 Ala. 5 ; Leonard's Case, 66 Ala. 461. 3. We may add, however, that no difficulty, can arise, in similar cases in the future, if the proper practice is enforced. The indictment is for murder, and to this the defendant pleaded [16] “not guilty,” and “former acquittal” of murder in the first degree, at a previous trial of the same cause in the year 1882. Special venires, under section 4874, are authorized only where a defendant is charged with a capital offense. Murder in the first degree is a capital offense, but not so with murder in the second degree. Now, a former acquittal or conviction is required, under our practice, to be specially pleaded. This was settled in Rickles v. The State, 68 Ala. 538, and had long been the uniform practice in this State. And when such special plea is interposed, it has been held irregular to submit an issue upon it, and upon that of not guilty, for simultaneous determination by the jury. The issue joined on the special plea must first be tried and decided. — Moody v. The State, 60 Ala. 78 ; Foster v. The State, 39 Ala. 229. íf the sufficiency and truth of this special plea is first tried, and it is fully sustained, the effect is to eliminate entirely from the indictment, and from the case, the higher grade of the offense of which the defendant was acquitted, and the indictment will stand as a charge only of the lesser offense involved in it. — Bell and Murray v. The State, 48 Ala. 684 ; Mitchell's Case, 60 Ala 26. If the special plea is not sustained, being permitted to plead over, the defendant will, of course, be tried upon the original indictment, without any modification of the crime charged by it. — Wharf. Cr. Pl. & Pr. (8th Ed.) § 478. A strict observance of these rules, as we have said, will leave no room for any trouble in solving like questions in the future. 4. The first three charges in the record, requested by the defendant, were properly refused by the court, because they were repugnant and misleading. Each asserts the proposition, at least by implication, that one may kill another with malice and premeditation, and yet do so in self-defense, so as to be acquitted of all criminality. Malice, or, as it is commonly called, malice prepense, or aforethought, is the chief characteristic of murder, and has. been said to be the grand criterion by which it is distinguished from any other species of homicide. — 1 Russell on Cr. (9th Ed.), 667. It is indicative of a wicked, depraved, and malignant spirit — a heart regardless of social duty, and deliberately bent on mischief. — Foster, 256. And it can scarcely mean less than an intent from which flows an unlawful and injurious act committed without legal justification. 1 Bish. Cr. Law (7th Ed.), § 429. Self-defense is the creature of necessity, and a killing in self-defense must be a killing from necessity, and not from malice and with premeditation. “ In all cases of homicide excusable by self-defense,” says Mr. Bus-sell, in his work on Crimes, “it must be taken that the attack was made upon a sudden occasion, and not premeditated, or with malice /” and after observing that the person who kills another [17] in his own defense should have retreated as far as he conveniently and safely could have done, to avoid the violence of the assault, before he turned upon his assailant, the same author adds, that “ in no case will a retreat avail, if it be feigned, in order to get an opportunity' or interval to enable the party to renew the fight with advantage.” — 1 Russ. Or. (9th Ed.), 889 ; People v. McLeod, 1 Hill (N. Y.) 377 ; s. c., Cases of Self-defense, Hor. & Thomp. 792. So, as said by Hawkins, “ if one man assault another with malice prepense, and, after driving him to the wall, kill him there in self-defense, he is nevertheless guilty of murder in respect of his first in tent.” — 1 Hawkins P. C., c. 31, section 26; Roscoe’s Cr. Ev. 753; DeArman v. The State, 71 Ala. 361. It is the sheerest solecism to say, that one has premeditatedly and maliciously killed another in self-defense. It is manifest that the charges in question, in the light of these familiar principles, are self-contradictory and repugnant, and were properly refused because misleading in their tendency. 5. There are, without doubt, cases of emergency, when no duty devolves upon one who is feloniously and forcibly assaulted by another with a deadly weapon, to decline combat by retreat. The instances must be few, however, and the evidence must be clear and free from all conflict, where the court, if ever, is permitted to make such a deduction. "We have repeatedly declared the rule in effect to be, and the practice has commonly been, to submit to the jury, as a question of fact, the inquiry as to whether the party assailed could have conveniently and safely retreated without apparently putting himself at a probable disadvantage. — Story's Case, 71 Ala. 329 ; DeArman's Case, Ib. 351; Tesney's Case, at the present term; 3 Green. Ev. § 116 ; 1 Russ. Or. 889. The last charge requested by the defendant was defective, in withdrawing from the jury, and devolving on the court, the determination of this inquiry. For this reason it was properly refused, if not also for other sufficient objections. We discover no error in the record, and the judgment must be affirmed.