Stoball v. State

BRICKELL, C. J. The motion to quash the venire and in arrest of judgment were properly overruled. The question involved was fully considered in Hurd v. State, ante, p. 440, and the case, Hames v. State, 113 Ala. 674, relied on in support of the motions was explained and distinguished from this case, [459] The inquiry propounded to the witness Merriwether, as to his knowledge of the place where Sallie Williams (the person alleged to have been slain) was killed, was merely introductory to his further examination, in the course of which he testified that on the night of the killing he was sent for, and on reaching the house where the boyly of the deceased was lying — that he saw she had been s'hot through the head with a pistol — that he found two pistol balls lodged in the house, and an iron bar in front of the house. The materiality of this testimony was fully developed in the progress of the trial — in some respects, material to the defendant as well as to the prosecution. Questions of this character, if answered affirmatively, are often necessary, to show the opportunities of the witness to know the facts to which he may testify on further examination, and if answered negatively, they are harmless. The case to which we are referred in support of the • objection (Green v. State, 96 Ala. 29), recognizes the propriety of such inquiry, when it is followed by or connected with material evidence of which it may be deemed introductory or explanatory. It was said by Coleman, J.: “It is permissible, in fact, unavoidable, sometimes, to propound a question prima facie objectionable, when it is merely introductory to questions, necessary to elicit facts which are legal evidence. Whenever it is subsequently shown that the apparent illegal evidence is a connecting part of, or explanatory of legal evidence, and was only used as necessarily introductory thereto, an objection to it cannot be sustained.” — Frazier v. State, ante, p. 442. The exceptions to the instructions given by the court ex mero moto, are wanting in merit. The first of these instructions, taken and construed in its entirety, as it must be, properly defines malice, the essential element of murder, as it is defined in the text books, and in repeated decisions of this court. A formed design, unlawfully, to do mischief or injury to another, is malice in its general acceptation. And as this instruction postulates, the formed design on the part of the defendant to take the life of the deceased, unlawfully, not in self-defense, without circumstances of provocation repelling the imputation of malice, is the ingredient of murder. Necessity only, real or appearing to be real, justifies the taking of human life, and this is the substance of the [460] remaining instruction. When by an exception taken, the attention of the judge was directed to the omission to instruct that the necessity need not be real, that it was sufficient to justify, if it was apparent, it was a duty to cure the omission, and the curing of it could not by possibility be of injury to the defendant. When an assault is made on a sudden quarrel, and a mutual combat ensues, as in the present case, though the assault may be made with a dangerous or deadly weapon, it is the duty of the assailed to retreat, that its threatened consequences may be avoided, if the circumstances are not such as to impress him with the reasonable belief that retreat would increase his peril. “For when it comes to a question whether one man shall flee or another shall live, the law decides that the former shall flee, rather than that the latter shall die.” The first instruction requested by the defendant, was in direct contravention of this doctrine, so essential to the preservation of human life. There was not a fact, or circumstance in evidence, having a tendency to reduce the killing to manslaughter in the second degree. Every fact in evidence tends to no other conclusion than that the killing was intentional. The instructions requested in reference to manslaughter in the second degree were abstract and properly refused. Be Arman v. State, 71 Ala. 351; Holley v. State, 75 Ala. 14. The -remaining instruction seems to have been extracted literally from an instruction which was approved in White v. State, 103 Ala. 72. As ajpplied to that case, and offenses of which there are not differing degrees, each of which is comprehended in the general allegations of the indictment, we do not doubt that the instruction is correct. But as applied to this case, and other offenses of which there are degrees, it is erroneous. It is true, in White's Case, there could have been -a conviction of an attempt to commit bribery, the offense charged. — Or. Code of 1886, § 4482. But the evidence had relation to a completed offense only, and did not necessitate any reference to a conviction for an attempt to commit it. The material allegations of the present indictment, comprehend all the ingredients of murder in the first degree, and upon it there may be a conviction of either of the degrees of criminal homicide — murder in the first [461] degree, murder in tlie second degree, voluntary or involuntary manslaughter. A conviction of murder in the first degree could not be had, unless there was proof beyond a reasonable doubt of all the distinguishing characteristics of that offense as described in the statute. But without proof of these characteristics, there could have been a conviction of murder in the second degree, if the homicide was malicious. Or there could have been a conviction of manslaughter in either of its degrees. The least that can be said of the instruction, as applied to this and similar cases, is, that it is well calculated to mislead and confuse the jury, and contravenes the long line of decisions of this court, in cases of this character, that instructions predicated upon the insufficiency of evidence to justify a conviction of a higher degree of homicide, without regard to its sufficiency to justify a conviction of a lesser degree, are essentially erroneous . We find no error in the record, and the judgment is affirmed. Affirmed.