Evans v. State , 120 Ala. 269 ( 1898 )

McCLELLAN, C. J.

Evans, the appellant, was defendant in the court below to an indictment for the murder of Parker Rowe. The evidence showed that Rowe was killed with a knife, the arteries and veins being severed on each side of the throat. There were two or three incisions on each side of the throat and neck. On the trial the court, against defendant's objection, allowed a non-expert witness, who examined the wounds, to testify that “they looked like they had been cut from the front of the throat back toward the ear.” This witness went on to further testify that “the gashes were deeper in front part of the throat, cuts were almost together, but toward the ears - they became shallower and further apart, the severed skin in edge of gashes were grained toward the ear, one gash left the throat and cut the lower portion of the ear, [one] gash left the throat and run up on jaw.” It would seem that the admission of the evidence objected to was proper, (Perry v. State, 87 Ala. 30; Watkins v. State, 89 Ala. 82), though the case of Nave v. Ala. Gt. So. R'y Co., 96 Ala. 264, casts some doubt upon it; but, whether so or not, under the influence of section 4333 of the Code establishing the doctrine of error without injury in criminal cases, the principle applies, that where a witness, though improperly allowed to state a conclusion of fact, states also the specific facts upon which that conclusion is based so that the jury can draw their own conclusions therefrom, no presumption of injury arises from the admission of his conclusion, and a reversal cannot be based upon it.—Underhill on Evidence, § 186; Langworthy v. Green, 88 Mich. 207; Pennsylvania Co. v. Frund, 30 N. E. Rep. 1116. This is analogous to the rule long established in this State that a non-expert witness may give his opinion or conclusion as to sanity if he details facts upon which it is predicated.—Fountain v. Brown, 38 Ala. 72; Murphee v. Senn, 107 Ala. 424; Burney v. Torrey, 100 Ala. 157.

The court in its general charge instructed the jury as follows ; “Life cannot be taken to arrest any other than a felonious assault, or an attempt to commit a forcible felony,” and again : “If an assault is not felonious, however it may mitigate, it cannot justify the taking of human life.” In other parts of the general charge there is announced the principle that the danger which will justify taking life to save life need only be apparent, so that construing the whole charge, as we must, together, the clauses copied above are not open to the objection that they authorize self-defense only to arrest actual danger of a felonious nature.

Moréover, these charges considered abstractly do not impugn upon that principle. They deal only with cases of actual assault, and they mean only that where there is an actual assault it must be of the character stated, else life cannot be take in resistance of it. And at most it would seem that the omission of reference in the charges to defendant’s right to act upon apparent, as well as upon actual danger could only serve to give them- a misleading tendency which should have been corrected by requests for explanatoiy charges, and which will not justify a reversal of the judgment.—Poe v. State, 87 Ala. 65, 69-70.

But, coming to the merits of the instructions apart from the objection to them we have been considering, it is found that they were taken bodily and literally from the opinion of this court in the case of Eiland v. State, 52 Ala. 322, 331, where it is said that a charge under discussion “if given without explanation, would probably have induced the j ury to believe that any peril to the person, though it was of mere indignity, or of mere battery, from which great bodily harm could not have been reasonably apprehended, would justify the talcing of life, if it could not be escaped by retreat,'or if retreat would increase the peril of it. Life cannot be taken to arrest any other than a felonious assault, or an attempt to commit a forcible felony. If an assault is not felonious, however it may mitigate, it cannot justfy a homicide. If a felonious assault is so violent that the assailed cannot retreat from it without manifest danger to his life or of enormous bodily harm, the duty of retreat does not rest on him.” A-strong argument is made against the soundness of that part of the opinion which we have italicised, and which is embodied in the instructions. It is said by counsel: “The vice of these charges consists * * * in the fact that they deny the right of self-defense in all cases in which the object of the assailant is to inflict great bodily harm not amounting to a felony. To constitute a felonious assault, the intent of the assailant must be to murder, maim, rob or ravish. Suppose the intention of the assailant is to inflict great bodily harm short of murder, mayhem or rape, and this intention is known to the defendant, may he not lawfully take life to arrest such an assault, provided, of course the other elements of self-defense are shown?” In line with these suggestions, it has been frequently said in this court in definition of the assault which may be resisted under certain conditions to the taking of life, that it must be of such a character as if perpetrated it is likely to produce death or grievous bodily harm.—Jackson v. State, 94 Ala. 85, 90, and cases there cited. It would seem under these decisions that an assault which will justify homicide in self-defense, other conditions existing, need not be a felonious assault, or an attempt to commit a forcible felony as felonies are defined by our statutes. It is probable that the terms used in these instructions came into vogue and accurately declared the law when they had different meanings from that which attaches to them under our statutory demarkation between felonies and misdemeanors. However that may be, whether the charges are faulty or not in the respect pointed out for appellant, no injury could have resulted to the defendant from their being given, since the evidence was without conflict that if any assault was made by the deceased, it was a felonious assault and foi'cible, being no less than an attempt by him to take defendant’s life by cutting him with a knife accompanied by a declaration of his deadly purpose. Under these circumstances the fault of the instructions insisted upon will not avail to reverse the judgment.

We have discussed the questions treated of in appellant’s brief. There are several other questions presented by the record. These we have duly considered. The rulings involving them are, however, so patently free from error, or lacking in prej udice to the appellant, that we deem it unnecessary to discuss them.

The judgment is affirmed.