Henson v. State , 120 Ala. 316 ( 1898 )

SHARPE, J.

The threat on the part of the deceased, which was sought to be shown by the witness Taylor, if it can be classed as a threat, was not shown to have reference to the defendant; and, therefore, it did not imply any purpose to injure him. A mere general threat or one not directed to any special person is not in such case admissible as evidence to show an intent to harm a particular individual.—King v. State, 89 Ala. 146; Redd v. State, 68 Ala. 492.

The witness Fisher testified in behalf of defendant, “that he was present when Dan Hall was killed.” He also testified to the particular acts of aggressidn on the part of deceased immediately before the shooting, when he said he “turned away and went outside ;” also that he was “standing in the door,” and that he “did not see Henson shoot Hall, but heard the three shots of the pistol after Hall struck Henson, and after witness turned to step into the yard.” It was thereafter competent for the State to show that the witness was without knowledge of the-matters to which he so testified ; and to that end to show that, he had made the statement as to his being out of the house at the time of thp shooting.- The statement involving a material fact, it was one upon which the witness could be contradicted after pile predicate laid. The latter part of the statement, wherein the witness said he “turned away to keep from seeing Henson kill Hall, that he knew he was going to do it,” was a part of a connected statement as to the witness being out of the house, and his reason for being out; and was, therefore, competent to be shown as a whole for the purpose of discrediting the witness. The liability of a witness to be so contradicted could not be avoided merely because the witness says he ‘does not remember the statement about which he is so interrogated.—Brown v. State, 79 Ala. 61; Payne v. State, 60 Ala. 80.

The evidence as to whether Hall at the time he was shot was seriously menacing-the defendant was in conflict. Some of defendant’s evidence tended to show that Hall was.pressing upon him and striking with a heavy chair ; but the witness'Taylor, testifying for the State, in a part of his testimony said : “Henson shot first before Hall took hold of the chair.”. In view of that testimony and upon the whole evidence, it was open for the jury to find that defendant when he fired the pistol was in no peril, real or apparent, of serious injury from any attack by Hall. In the absence of a necessity to defend, the principle of self-defense is without application and can not properly be invoked. The charge requested by the defendant assumes that it could be invoked if only the defendant be without fault in bringing on the difficulty, thereby ignoring the State’s evidence a,s to the absence of necessity for the killing. Therefore, if for no other reason, the charge was defective and calculated to mislead the jury in that it failed to hypothesize the necessity, real or apparent, for shooting Hall in order for defendant himself to escape present impending danger of grievous bodily harm. Such necessity, as well as the freedom from fault hypothesized, must have existed to properly entitle the defendant to invoke the law of self-defense.—Bain v. State, 70 Ala. 4; Evans v. State, 109 Ala. 11; Miller v. State, 107 Ala. 40; Roden v. State, 97 Ala. 54; Storey v. State, 71 Ala. 337. A chargediaving a similar fault though uot identical with this was held bad on a former appeal in this case.—Henson v. State, 114 Ala. 25.

The portion of the oral charge excepted to stated the law incorrectly as to the punishment for manslaughter in the first degree. The period of punishment is fixed by section 4862 of the Code at not less than one nor more than ten years, according to the jury’s discretion. That section is ¡modified by the later enactment found in section 5412, so that where the jury fix the period of punishment at more than one and not less than two years the place and manner of punishment whether by imprisonment in the penitentiary or in the county jail or by hard labor for the county is left to the discretion of the presiding judge ; and if the jury fix the period at one year, the sentence must be either to the county jail orto hard labor for the county in the discretion of the judge. The charge of the court in stating the maximum period of punishment at two instead of ten years was only too favorable to the defendant, and, therefore, will not work a reversal of the judgment. — Code, §4333. Independent of this recent statute errors which were beneficial to the defendant were not available to reverse.—Marks v. State, 87 Ala. 99, and cases there cited.

That the jury was allowed to express in the verdict the place as well as the period of punishment was likewise without injury. Such expression was only surplusage, and could not interfere with the discretion of the judge in designating such place.—Evans v. State, 109 Ala. 11; Zaner v. State, 90 Ala. 651.

No reversible error appearing in the record, the judgment of the circuit court must be affirmed.

Affix-med.