Gafford v. State , 122 Ala. 54 ( 1898 )

SHARPE, J.

— The defendant was indicted, tried and

convicted on the charge of murder, and sentenced to capital punishment. The material questions reserved for review by this court arise from the rulings of the .trial court upon the admissibility of testimony, and the refusal of instructions requested by the defendant. We have, however, given to the entire record the careful scrutiny required by the vital importance of the case to the defendant, and the solemn duty imposed upon us by law, and, at the same time, impressed, on the one hand, with the necessity, for the repose and security of society, of sustaining all legal convictions in cases of this character, and, on the other, with our duty to see that the accused is not deprived of any right necessary or proper to the full presentation of his defense, and the enjoyment to the fullest extent authorized by law, of his constitutional right to a full, fair and impartial trial by jury.

There are certain facts bearing upon the homicide that are undisputed, and as to which there is no conflict in the testimony, a brief summary of Which is necessary to be given in order to a clear statement of the conclusions we have reached upon the rulings of the circuit court upon the testimony. On the morning of Monday, August 25th, 1897, deceased visited Greenville, in Butler county, Alabama, riding there in his buggy as had been his habit for some time. On the afternoon of the same day he was returning in his buggy, alone, from Greenville to his Lome. At about 6 o’clock of that afternoon he came upon defendant, who was on or near the public road with gun at a point not far from defendant’s home. At or near the time of this meeting two rapid reports of a gun were heard by several persons who were near the locality, and immediately thereafter the defendant was seen walking away with his gun, and upon meeting two other persons near at hand, told them he had shot deceased, but did not know whether he was dead, and requesting them to do what they could for deceased. Deceased was found by these two parties, and others, lying dead in the road with gun-shot wounds on his body and a pistol, which was recognized as belonging to deceased, lying on the ground about five or six feet away from the body. There were two eye-witnesses to the homicide besides the defendant himself, one testifying for the State and the other for the defendant, and their statements are altogether irreconcilable. The statement of the State’s witness makes out a case of unprovoked, willful, premeditated and deliberate murder by lying in wait with a deadly weapon; while the defendant’s witness makes deceased the aggressor with a deadly weapon, and discloses a shooting in self-defense hy the defendant. The testimony of this Avitness corresponds in all respects Avitli that of defendant himself, except that the latter gives a conversation between him and deceased which his Avitness stated he (Avitness) could not hear. The State’s Avitness Avas contradicted in some collateral statements made by her, and other witnesses testified she had told them she did not see the killing. The defendant’s Avitness Avas shoAvn to have resided, Avhen the homicide occurred, on defendant’s place. Numerous other witnesses Avere examined both on behalf of the prosecution and the defense, hut it is not necessary to refer in detail to their testimony. Among other things their testimony sIioavs threats, both recent and remote, on the part of deceased against defendant’s life, and from some of said testimony it might be inferred that the defendant had made like threats against deceased, and that the threats of each were communicated to the other. Tt is also inferable from unchallenged testimony that these threats grew out of certain rumors connecting the names of defendant’s widowed sister and deceased in an nnfavorable light. The defendant offered to introduce proof of an adulterous relation between deceased and his sister at the time of and before the homicide, as A\ell as specified acts of adultery on their part, but the court refused to admit the testimony so offered, and to this action of the court the defendant excepted. If the question of self-defense were out of the case it Avould be quite clear that all testimony of this character would he inadmissible for the purpose of justifying the murder, and Avould be equally unavailing to reduce the killing from murder to manslaughter, unless the circumstances of such provocation Avere of such a character as were reasonably calculated to provoke sudden passion and resentment, and the homicide was traceable solely to the influence of passion thus engendered. For example, if the defendant had discoArered deceased and his sister in the act of adultery and, under the influence of sudden passion thus aroused, had slain him, then the killing would not have been willful, malicious, deliberate and premedifated, or murder in the first degree, but murder in the second degree,- or, according to circumstances, manslaughter in the first degree. — Ex parte Sloane, 95 Ala. 22; Watson v. State, 82 Ala. 12. It is not necessary, however, to consider the question of the admissibility of this testimony in this aspect, for the reason that it was not and could not have been offered for any such purpose, inasmuch as the defendant in. his own testimony negatives the idea that he acted upon any such provocation, and rests his case entirely upon the right of self-defense.

The real question, therefore, is, would the testimony offered to be introduced by defendant have any tendency, even though slight, to shed light on the main inquiry as fo self-defense, which was clouded by conflicting and hopelessly irreconcilable testimony? In Mattison v. State, 55 Ala. 224, we said: “In inquiries of fact, dependent on circumstantial evidence for their solution, no certain rule can be laid down which will define with unerring accuracy what collateral facts and circumstances are sufficiently proximate to justify their admission in evidence. * * Whatever tends to shed light on the main inquiry and does not withdraw attention from such main inquiry by obtruding upon the minds of the jury matters which are foreign, or of questionable pertinency is, as a general rule, admissible evidence.” In Anew of the conflicting testimony as to which of the two, deceased or the defendant, was the aggressor in the unfortunate tragedy, would the offered testimony shed any light on that question? Could the jury fairly determine that question Avithout knoivledge of facts which might have exerted an influence upon or supplied the motive to one or the other to become the aggressor? Or did the knowledge by the defendant of the facts sought to be proven, reasonably exert any influence upon the mind of defendant in interpreting deceased’s threats, motive or conduct? Or, in other Avords, Avould knowledge of these facts by defendant authorize him to regard as hostile and dangerous, threats, motive or conduct on deceased’s part Avhieh, in the'absence of that knoAAdedge, might not have justified that conclusion? In Bell v. State, 29 Tex. App. 125, the court upon a much similar question says: “It was important to the defendant that the jury should be fully informed as to the true cause of the enmity entertained by the deceased against him, and the character of that enmity. Such information would enable the jury, in determining the issue of self-defense, to view the acts of the deceased from the defendant’s, standpoint. Without this information the jury could not know,- as the defendant did, the settled, determined, and deadly character of the deceased’s hatred towards him, and the true cause of that hatred. This testimony throws light, not only upon the motive actuating the deceased in attacking the defendant, but upon the conduct of the defendant upon that occasion, and the motive which actuated him to kill the deceased. It tends to show that he had reasonable ground to apprehend that the attack made upon him was intended by the deceased to be a deadly one. It gives character to the threats, motive, and conduct of the deceased towards the defendant, and also, to the motive and conduct of the defendant;” citing Russell v. State, 11 Tex. App. 288. We Avould not be understood as indicating any opinion that the deceased made an attack upon the defendant, or was in anywise the aggressor, but there was evidence on the part of the defendant to that effect before the jury, which it Avas fully as much their duty to Aveigli and consider as the testimony on behalf of the prosecution shoxving the defendant to have been the aggressor.

In Rutledge v. State, 88 Ala. 85, it was said by this court: “We understand the rule in respect to the admission of evidence, on the part of a defendant on trial for murder, of previous threats by, or difficulties with, or ill-feeling on the part of deceased, to be this: that when any phase of the testimony would, if believed, present a case of self-defense, then the accused, using this aspect of the facts addxxced as a predicate therefor, may go further, and strengthen it, by showing that the deceased had threatened him, or entertained ill-feeling toward him, or that, there had been difficxilties between them; * * * or, to state the principle in a more concrete form, the evidence addxxced must have some tendency to establish the constituents of the right to destroy life that life may be preserved. * * * The theory of the rule is, that a right to kill can never be the result of the violent, blood-thirsty disposition, revengeful feeling, or threats of the deceased, and hence, until there are facts offered which go in some measure to establish the necessity to strike, as the law defines that necessity, such evidence is patently irrelevant. These matters, in other words, are competent to give character to a necessity otherwise, shown, and no necessity being otherwise shown, there is an utter absence of the predicate upon which alone such qualifying evidence should be received.” In Copeland v. State, Horrigan & Thompson’s Cases of Self-defense, 41, the defendant killed a woman with whom her husband had adulterous relations, and the question was whether such killing was in self-defense. The court on this point says: “But it becomes highly important to investigate with care, first, the effect which this intercourse, notorious as it was, produced upon the feelings and vindictive passions of the prisoner and the deceased towards one another, and, second, the mode and manner in which these feelings and passions were brought to bear, in producing the catastrophe so much deplored.” And in Green v. State, 69 Ala. 9, this court said: “There being ground for argument, at least, that the deceased must have taken some action in the matter of drawing his pistol before the accused fired, this lets in the threat the witness testified the deceased made * * * shortly before the rencontre. If believed it tended' to show the animus of the deceased towards the accused so recently before the homicide as to authorize its consideration by the jury in ascertaining the conduct of the parties immediately before the firing.”

We cannot avoid the conclusion, in the light of the foregoing authorities, and that portion of the evidence tending to- show that deceased was the aggressor, with a deadly weapon, that the exclusion of the testimony offered by defendant as to deceased’s relations with defendant’s sister, deprived the jury of proof which, if admitted, might in their opinion have shed light upon the main inquiry in the case, and as to which the testimony before them was so hopelessly conflicting.

It was proved, without contradiction, that defendant and deceased went on Saturday before the Monday of the killing, in the presence of deceased’s father, that a satisfactory interview ivas had between them as to the rumors affecting deceased and defendant’s sister, and that the two parted with repeated friendly shaking of hands. Notwithstanding this, it is further shown, without conflict, that on the morning of the day of the killing deceased sent a hostile and deadly message to defendant, and the two met in the public road in the afternoon of that day, both armed with deadly weapons. Under these circumstances, and in the absence of the offered testimony, and with deceased’s denial of his unlawful relations with defendant’s sister before the jury, the jury would naturally look in vain for any motive that might have impelled the deceased to become the aggressor under such circumstances, and might have reasonably inferred that his pistol was drawn, if drawn at all, for defensive purposes against the defendant, who is shown to have had, at the time, a double barrel shot-gun in his hands. With no facts before them to illustrate the character of deceased’s threats of that day, or furnishing an inference for a motive on his part to attack defendant, the jury could not, under such circumstances, have reached any other conclusion than that they did reach, viz., that the defendant was the aggressor. But if it had been shown to them that notwithstanding deceased’s denials to defendant of improper relations between deceased and defendant’s sister, that such relations in fact existed then, and had existed for a considerable length of time previously, it may well be that the jury from their knowledge of human nature and the history of like cases, might, in the light of such testimony, have inferred a motive on deceased’s part to remove a dangerous obstacle out of the way of his illicit enjoyment. However that may be, such testimony would have shown the cause of the enmity of the deceased towards the defendant, its intensity, and would have tended to show a reasonableness of defendant’s apprehension of danger of death or serious bodily harm from the attack made upon him by deceased, if the jury should believe that such an attack was made. We are at all events persuaded that with the testimony referred to before them, the jury would have been enabled to balance more justly the substantial merits of the question of self-defense by reason of a fuller and juster apprehension of the defendant’s real position at the critical moment of the fatal encounter, and the real state of feeling then existing on the part of each. It is proper, however, for us to observe, that with this testimony in, it would, nevertheless, still be the duty of the jury to inquire whether or not, in view of the provocation, and the state of feeling between the parties, and other attending circumstances, the words or conduct of deceased at the time of the rencontre were seized upon by defendant as a pretext to execute a previously formed design to take the life of deceased. While the defendant bad the right to carry his gun, and, also, had the right to be upon the public road at the time and place where he and deceased came together, yet, if he went to such place at such time, and with his gun, with the formed design of taking the life of deceased to avenge the wrongs done his sister and family, or to wreak vengeance upon the deceased because of the latter’s threats of that day, or previously, then the defendant was not free from fault, and cannot invoke self-defense, even if the jury should believe that deceased had drawn his pistol upon defendant before the latter fired and killed deceased, if the defendant at the time of the killing had not abandoned but still entertained such previously formed design. Our conclusion upon the question of the admissibility of the testimony offered by the defendant to show an adulterous relation between the deceased and defendant’s sister, and defendant’s knowledge thereof, is, that the circuit court erred in excluding it, and that its exclusion is reversible error.

We think there was no error in the refusal of the court to give the charge numbered 1 requested by the defendant. In the case of Springfield v. State, 96 Ala. 81, we said: “Charge No. 14 assumes as matter of law that on the facts therein postulated the defendant could not have retreated without endangering his life. It was an inquiry for the jury to determine on all the proof whether the defendant conld have retreated without endangering his safety, or increasing his peril, and not a matter to be decided by the court.”

Charge No. 2 exacts too high a measure of proof in order to a conviction, and was properly refused. A charge in identical words was condemned by us in the case of Paldwin v. State, 111 Ala. 12.

There was and could have been no dispute about the defendant’s right to carry a shot gun, the trial involving only his right to use it against the deceased; and, therefore, the court could not be required to charge, as requested by charge 3, upon a matter foreign to the issue.

As supporting the case for the State upon the question of evidence here under consideration, the case of Rogers v. The State, 117 Ala. 9, has been cited, but it is wanting in analogy. There the proof showed that Rogers being armed sought Hale who was unarmed, began the dispute with him and shot him. The evidence he sought to introduce Avas that Hale had eloped with his daughter, promising to marry her, and had returned from the trip without fulfilling the promise. This showed not an infatuation for the daughter interfered with by Rogers, but rather an abandonment of the daughter and a desire to get away from her; and furnishing no motive for hostility on the part of Hale as against Rogers, it had no tendency to shoAV that Hale Avas the aggressor. Moreover, the proof concerning hostile demonstrations on the part of Hale Avas insufficient to raise the question of self-defense. Rogers testified that Hale threw his hand to his hip pocket, but there Avas no proof that the pocket contained or had contained a weapon, or that Hale was making any present threat or doing any act to make the hip pocket movement significant of danger to Rogers if Rogers was not then himself aggressing upon Hale, and if he Avas so aggressing he could not invoke the principle of self-defense. Under the circumstances' in proof in that case the evidence there offered Avas properly excluded under the general rule declared in Robinson v. The State, 108 Ala. 14, which Avas referred to in the opinion.

The other rulings of the circuit court appear to be without error; but for those pointed out herein, it results that the judgment of the court below must be reversed and the cause remanded for further proceedings in conformity with this opinion. -

Reversed and remanded.

Note : The foregoing opinion, down to what is said of charge 2, inclusive, was prepared by Hon. Robert C. Briokell, late Chief Justice, before his retirement, and is adopted by a majority of the present court.