Angling v. State

TYSON, J. This appeal is prosecuted from a judgment of conviction of manslaughter in the first degree predicated upon an indictment charging the defendant with the offense of murder in the second degree. All [21] questions reserved upon the trial grow out of the rulings of the court upon the admission and exclusion of evidence and the refusal of a single written charge to the defendant. . The evidence, without dispute, establishes, that the defendant shot the deceased in the back while the latter was in the act of running from him. Indeed, according to the testimony of the defendant himself, the only witness examined who saw the transaction in which the deceased received the fatal wound, the deceased had abandoned his attack upon him and was in the act of fleeing when he shot him. There, therefore, existed no- necessity, real or apparent, which justified his conduct. — Stilwell v. State, 307 Ala. 36; Hughes v. State, 117 Ala. 29; Kilgore v. State, 124 Ala. 24; Thomas v. State, 125 Ala. 4. This being true, he is in no position to invoke the doctrine of self defense. This statement effectually disposes of the exceptions, adversely to appellant, reserved by him to the action of the court in excluding the evidence contained in the written showing offered by him. Under the principles declared in Gafford v. State, 122 Ala. 54, that character of evidence is only competent in defendant’s behalf in a case involving the question of self defense. That casei does not go to the extent, and we do not understand appellant’s counsel to contend otherwise, of holding that such evidence is competent either in justification or extenuation of the act of defendant under the circumstances shown by the evidence in this case. Accepting’ his version of the transaction, which the jury seems to have done, it is controlled by the principle which is universally recognized and stated by Mr. Bishop to be: “If a husband finds his wife committing adultery and under the provocation instantly takes- her life or the adulterer’s, the homicide is only manslaughter.” — 2 Bishop’s New. Crim. Law, § 708; McNeill v. State, 102 Ala. 121; Hooks v. State, 99 Ala. 366; Dabney v. State, 113 Ala. 38. Likewise there was no error in excluding the evidence offered by the defendant that he had previous to the killing ordered deceased to- stay away from his house. Johnson v. State, infra. It might well have been admitted in behalf of the prosecution, for the purpose of showing ill will on the part- of defendant towards de [22] ceased, but it could have uo legitimate tendency to excuse or justify the act of defendant in talcing the life of the deceased. The defendant having testified in his own behalf, it was entirely competent for the State to impeach him by introducing the testimony given by him on the preliminary tidal. Furthermore, his testimony ou that trial was competent, as independent evidence, being in the nature of a judicial confession. — Hall v. State, 134 Ala. 90; 32 So. Rep. 750. The State was allowed to prove, against the objection of defendant, that deceased went to the house of defendant where he was killed in the morning of the day of the killing to look after his hogs. Under the view we take of the case, whether this testimony was properly admitted or not is of no consequence. With it in or out, the court might have properly instructed the jury upon a written request, that upon the defendant’s own testimony, if believed by them beyond a reasonable doubt, he was guilty of the offense of which he1 was convicted. If its admission was error, it was clearly without injury. The charge requested by defendant was properly refused. Cunningham v. State, 117 Ala. 59; Hale v. State, 122 Ala. 85; Pickens v. State, 115 Ala. 42. Affirmed.