Hammil v. State

STONE, O. J. To disqualify a petit juror for service in a criminal trial, he must, under our statute, have more than a bias, or fixed opinion as to the guilt or innocence of the accused. That opinion must be so fixed as that it would bias the verdict he would be required to render. — Code of 1886, § 4331, subd. 7. And of the existence vel non of such fixed opinion, the sworn answer of the juror is the only legal evidence. — -Code, § 4332. The juror Porter, being sworn, testified, in substance, that he had an opinion, but it would not bias his verdict. He was a competent juror.—Bales v. State, 63 Ala. 30; Jackson v. State, 77 Ala. 18; Long v. State, 86 Ala. 36. We think it clear that, when the deceased made a statement, which was offered as a dying declaration, he was in fact almost in articulo mortis; and the circumstances convince us that he realized and felt that he would not recover from the wound he had received. Every request he made tends strongly to prove that he felt sure that his wound was mortal. Even the paper he signed as a dying declaration states that he was satisfied that he was not long for this world. That paper was rightly received as a dying declaration.—Pulliam v. State, 88 Ala. 1, and authorities cited; 3 Brick. Dig. 226. Charges to a jury should be framed with reference to the tendencies of the testimony, and, in construing them, they should be viewed and interpreted by the same standard. Alexander v. Alexander, 71 Ala. 295; 3 Brick. Dig. 115, §§ 133 et seg. Measured by this standard, we can not say the City Court- erred in either of the charges excepted to. When one, who is without fault in bringing on a difficulty, finds himself so menaced by present, impending danger to his life or limb, as that he strikes, and thereby slays his assailant, it is not absolutely necessary to his plea of self-defense that [582] lie should have attempted to escape by flight. If it be made to appear that he was so obstructed by obstacles that he could not escape, or that, in attempting to do so, he would probably have increased the peril with which he was menaced, this would relieve him of all duty to attempt it. Plight need not be attempted by one innocently drawn into such peril, if by so doing he increases the danger threatened.—Brown v. State, 74 Ala. 478; 3 Brick. Dig. 219, §§ 574 et seq. Charge No. 1 relieved the accused of the duty of attempting to escape, unless such attempt could probably have been made successful. “ Probable means of escape ” necessarily implies that the means, if resorted to, would probably be safe and successful, and excludes the idea of attempted flight as a duty, if such attempt would probably increase the peril. There was no error in giving this charge. Charge No. 2 is also free from error. It requires, as one of the ingredients of defendant’s plea of self-defense, that “ there must have been no other reasonable mode of escape by retreating,. or by avoiding the combat with safety.” If attempted escape entailed a probable increase of peril, then, it could not be a reasonable mode, nor could it be attempted with safety; and hence the criticism of this charge is not justified by the language employed. If it was thought that charges one and two were at all obscure in the respect commented on above, it was the duty of the defendant to ask explanatory charges. Charge 3 was taken from Lang v. State, 84 Ala. 1. It is certainly true, that a homicide perpetrated “ with wickedness or depravity of heart,” without more, is not necessarily and universally murder in the first degree. The charge hypothesizes much more than this. Its language is, “ If the defendant purposely killed John Maguire, . . . with a wickedness or depravity of heart towards the deceased, and the killing was determined on beforehand, and after reflection (for however short a time before the fatal shot was fired is immaterial), the defendant is guilty of murder in the first degree.” This charge is free from error. The judgment of the City Court is affirmed.