Ellis v. State , 120 Ala. 333 ( 1898 )

DOWDELL, J.

The appellant was tried and' convicted on an indictment for an assault with intent to murder. Upon the trial the State introduced testimony tending to show the felonious character of the assault. Jack White, the assaulted party, among other things testified as follows : “What started the trouble was this : The night before the difficulty I was watching a field for Mr, Chestnut, as for several nights previous to tliis some person or persons had been stealing from it. While I was so watching I saw Jim Williams and defendant stealing from this field and shot at them. In reply defendant snapped a cap at me. After this both ran off. The next day I told Mr. Chestnut what happened in the field the night before.” -This testimony no doubt was offered to prove a previous difficulty and as tending to show malice on the part of the defendant in making the assault for which he was on trial, and for that purpose was competent. On the cross-examination by the defendant of the State’s witness, Mr. Chestnut, the defendant sought to show by the witness, who stated on cross-examination that he had seen two sets of men.’s tracks in the field where Jack White said he shot at defendant, the size and shape of those tracks, and this the court refused to allow on objection made by the State. We think this evidence was competent on. the line of being in rebuttal of the evidence offered by the State as to the previous difficulty. If the size and shape of the tracks had shown them such as not to have been made by defendant, this would have shown that the defendant was not the party shot at by Jack White, and was clearly in rebuttal of the evidence as to the previous difficulty. The court erred in refusing to allow the defendant to make this proof.

The bill of exceptions states in general terms that the testimony introduced in behalf of the defendant tended to show that defendant acted in self-defense. In the course of its general charge to the jury, in describing the necessary elements of self-defense, the court charged the jury as follows : “The law does not institute any comparison for the purpose of ascertaining the relative fault of the accused and the person assaulted, but it says that the accused who answers a charge of crime by the plea of self-defense must, in order to be acquitted on that ground-, be entirely free from fault in bringing on the difficulty.” To that part of the foregoing which is in the words, “but it [the law] says that the accused who answers a charge of crime by the plea of self-defense must, in order to be acquitted on that ground, be entirely free from fault in bringing on the difficulty, ” the defendant then and there duly excepted, stating the ground of the exception to be that the law does not qualify the freedom from fault, but says the defendant must be free from fault. The exception and objection of the appellant goes to the use of the word “entirely” employed by the court in its charge. It is contended by counsel for appellant that this is contrary to the decisions of this court, wherein it has been said, that under the plea of self-defense, a charge requested by the defendant which, by its language, qualified the freedom from fault on the part of the defendant, was properly refused. We can not agree to this contention of appellant’s counsel. Upon an examination of those cases, it will be found that the language of the charges requested did qualify this important element and principle of the law of self-defense, and with the tendency, if not the purpose, to fix degrees of defendant’s freedom from fault in bringing on the difficulty. The language employed by the court in this case in the general charge, exacted no higher degree, than is imported by the expression “free from fault.” In its final analysis, without being hypercritical, the only just and reasonable construction of the language employed in the charge, is that it means /ree from fault, nothing' more nor less. Besides, the trial court was not without precedent in authorities in the employment of the word “entirely” in the connection in which it was used. In Bell v. State, 115 Ala. 39, this court in commenting on a charge used the following language: “Charge 20 does not sufficiently hypothesize the defendant’s freedom from fault in bringing on the difficulty. If he made the declaration testified to by the witness, Jim Tom Childress, as the deceased and others approached defendant, it was a circumstance to be considered by the jury in determining whether or not defendant was entirely free from fault.” (The italics are ours). In Crawford v. State, 112 Ala. 29, speaking of this element of self-defense, Brickell, C. J., uses the following language : “The defendant must have been free from all fault or wrong-doing, on his part, which had the effect to provoke or bring on the difficulty.” (The italics ours). See also Rains v. State, 88 Ala. 91.

The court in its oral charge, in defining a reasonable doubt, stated that “a reasonable doubt is a doubt for which a reason may be assigned,” and this was excepted to by the defendant. This definition has been several times decided by this court to be correct, and we adhere to those decisions.—Hodge v. State, 97 Ala. 37 ; Walker v. State, 117 Ala. 42.

There was testimony on the part of the State tending to show a conspiracy between defendant and one Jim Williams to commit the offense charged in the indictment, and testimony on the part of defendant tending to disprove any conspiracy. In their arguments to the jury counsel for the State contended that a conspiracy was proven, while counsel for defeudant contended that the evidence did not warrant such conclusion. The court in its general charge instructed the jury that in order to convict the defendant it was not necessary for them to find that there was a conspiracy between defendant and Jim Williams. To this part of the general charge the defendant duly excepted. There is nothing in the exception ; the charge wrns eminently proper and correct.

The court further in its general charge to the jury said : “Malice as used here does not necessarily mean personal ill will or .hatred, yet if the sole purpose actuating defendant to stab J ack White was to get revenge for some wrong previously done him, whether real or fancied, then the law would consider the act as done with malice.” The court then defined legal malice. To that part of the foregoing charge beginning with the word “yet,” the defendant excepted. The stabbing of Jack White by defendant was not denied, and there was evidence tending to show that it was done for revenge. We think the charge was free from error.

The written charge requested by the defendant was very properly refused. It is not only argumentative, but it, also, fails to correctly state the law. Passion engendered by mere words will not serve to reduce the felonious assault to an assault and battery or simple assault, and the same rule obtains as to information communicated by others.

For the error pointed out the judgment of the city court is reversed and cause remanded.