Domingus v. State

McOLELLAN, J. — Very many exceptions were reserved on the trial below to the rulings of the court both on the admissibility of testimony and in respect of charges given and refused. These exceptions have been severally examined and found to be without merit, except in two particulars as to the competency of evidence, and those addressed to the action of the trial court in giving charges 2, 3 and 11, at the instance, of the State; and these rulings only will be discussed. 1‘. The testimony of the witness Calhoun, to the effect that a short time before the fatal encounter George Stringer, the deceased, stated that he “was on his way back to the warehouse,” was improperly allowed to go to the jury. However short. a time this statement was made before the killing, it does not appear to have had any connection with the main fact under inquiry, and hence could not be of the res gestae of the main transaction. Time alone is not a determining criterion when the question is whether a thing said or done is a part of a given transaction. The act done, or the statement made, may be immediately before or after the occurrence of the matter constituting the gist of the inquiry, and yet not have led up to, or resulted from the main fact, nor tend to throw light upon or give character to it; and, pf consequence, bear no relation to, nor, in any sense, be a part of such, main fact. The statement of Stringer appears to have been of this class. His remark, for aught that is in this record, was of the most casual kind — thát he was returning to his place of business — -a fact which does not appear to have been due to anything which had previously transpired between him and the defendant, nor to have led up to the subsequent occurrences, nor to have borne any relation whatever to anything that happened between the parties to the difficulty which resulted in his death. Yet, in view of the evidence tending to show previous threats on his part toward the defendant, we can not see but that this statement may have prejudiced the defendant. It might have minimized, in the minds-of the jury, any advantage they might otherwise have accoi’ded him on account of the threats which a tendency of the evidence goes to show were made by Stringer and communicated to the defendant, [13] which, in view of the fact that there is no pretense that this statement ever came to defendant’s knowledge, would have been unjust and injurious to him. 2. We construe that part, of the testimony of the witness Matthews which was excluded, as tending to show that Bee Stringer, between whom and Domingus this difficulty began, had a box of pistol cartridges about his person when the trouble arose.- There was also evidence that he had a pistol. One of the issues on the trial was, whether Bee Stringer or Domingus brought on the difficulty. The former had come to Dot-han, where the difficulty occurred, anticipating, as some of the evidence tends to show, a general fight between Domingus and Powell, who were marshals of the town, and George Stringer and his friends, George Stringer and the marshals having had trouble a day or two previously. It was, of course, competent for the defendant to show such expectation on the part of the Stringers, that- they threatened trouble, and had prepared themselves for a difficulty on that day; and it is clear, we think, that the evidence which was excluded as to the box of cartridges went to show such preparation, and to give some color to the theory of the defense, that the difficulty was brought on by Bee Stringer in accordance with a previously formed purpose, and hence should have been allowed to go to the jury. 3. Charge numbered 2 given for the State is, in our opinion, invasive of the province of the jury, in that it declares they should not readily infer the right of a defendant to strike and kill on the state of facts which it hypothesizes, and upon which it assumes such right might exist. Whenever the jury are authorized to reach a given conclusion at all, it is a clear invasion of theirright in that connection to charge that they must lean away from that conclusion, must be reluctant to arrive at it, or must “not readily infer,” the right dependent upon it. Charge 2 was erroneous. 4. It is similarly invasive of the jury’s right to tell them that, upon certain facts, .they may reasonably infer the defendant was not in imminent peril at the time he fired the fatal shot. It is solely for the jury to determine whether any particular inference that may possibly be drawn from given facts is or is not a reasonable inference, and not for the court to substitute its judgment for theirs in passing upon the character of inferences afforded by the evidence. This is an infirmity of charge 3 given for the State. It is, perhaps, bad also for the further reason, that it confines defendant’s right to strike to circumstances which involve actual imminent danger, when the right might exist also - upon the reasonable appearance of such danger though it did’ not actually exist. [14] 5. Charge 11 given for the State is bad on the principles of law recently declared by this court in the case of Hornsby v. State, 10 So. Rep. 522, in that it predicates murder of a killing done “pursuant to a previously formed design,” regardless of whether the formation and entertainment of such design resulted from malice, from sudden passion aroused by adequate provocation, or from the necessity and instincts of self-preservation. Reversed and remanded.