Sunday, June 30, 2013

"There was and could have been no dispute about the defendant's right to carry a shotgun"

(122 Ala. 54)
(Supreme Court of Alabama. Jan. 11, 1899.)
    1. Where defendant, accused of homicide, claims that he acted in self-defense, and the testimony is irreconcilable as to who was the aggressor, and there is testimony that deceased had made threats against defendant's life, evidence of adulterous relations between deceased and defendant's sister is admissible to show a motive for deceased's being the aggressor, and the reasonableness of defendant's fear of bodily harm, if deceased was the aggressor.

    2. Where one arms himself with a deadly weapon, and goes onto a public road, with the design of killing another to avenge wrongs done by the latter to the former's family, or to avenge threats by the latter, the former cannot invoke self-defense, though the latter was the aggressor, the former not having abandoned his design.

    3. In a prosecution for homicide, an instruction that if, at the time of the killing, deceased was attacking, or about to attack, defendant with a deadly weapon, defendant was not bound to retreat, is properly excluded, as it assumes that defendant could not have retreated without endangering his safety, which was for the jury to determine.

    4. An instruction that unless the evidence excludes, to a moral certainty, every hypothesis but that of guilt, the jury must acquit, is incorrect, as exacting too high a measure of proof.

   5. Where deceased was shot by defendant with a shotgun on the public road, and there was no dispute as to defendant's right to carry a gun on the road, a charge that, if he had reason to apprehend an attack, he had a legal right to bear arms, was properly refused, as foreign to the issues.

    Tyson and Haralson, JJ., dissenting.
    Appeal from circuit court, Butler county; John R. Tyson, Judge.
    John A. Gafford was convicted of murder, and appeals. Reversed.

    The appellant, John A. Gafford, was indicted and tried for the murder of Francis Bartow Lloyd, was convicted of murder in the first degree, and sentenced to be hung. The material facts of the case, necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that if they believe from the evidence in this case, beyond all reasonable doubt, that deceased, at the time of the killing, was attacking, or in the act of attacking, the defendant with a deadly weapon, then the defendant was not bound to retreat, but had the right to stand and defend himself, provided he was without fault in bringing on the difficulty which resulted in the killing." (2) "The court charges the jury that, unless the evidence against the defendant should be such as to exclude to a moral certainty every hypothesis or supposition but that of his guilt of the offense imputed to him, the jury must not convict the defendant." (3) "The court charges the jury that, if the defendant had reason to apprehend an attack, he had a legal right to bear arms in defense of himself."

   Terry Richardson and James Weatherly, for appellant. William C. Fitts, Atty. Gen., for the State.

   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 bis 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 25, 1897, deceased visited Greenville, in Butler county, Ala., 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 home. At about 6 o'clock of that afternoon he came upon defendant, who was on or near the public road, with his 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 gunshot 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 eyewitnesses 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 by the defendant. The testimony of this witness corresponds in all respects with that of defendant himself, except that the latter gives a conversation between him and deceased which his witness stated he (witness) could not hear. The state's witness was 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 witness was shown to have resided, when the homicide occurred, on defendant's place. Numerous other witnesses were examined, both on behalf of the prosecution and the defense, but it is not necessary to refer in detail to their testimony. Among other things, their testimony shows 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. It 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 unfavorable 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 well as specific 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 would be quite clear that all testimony of this character would be inadmissible for the purpose of justifying the murder, and would be equally unavailing to reduce the killing from murder to manslaughter, unless the circumstances of such provocation were 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 discovered 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 premeditated, 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, II South. 14; Watson v. State, 82 Ala. 12, 2 South. 455. 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 to 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 view 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 without knowledge 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 words, would knowledge of these facts by defendant authorize him to regard, as hostile and dangerous, threats, motive, or conduct on deceased's part which, in the absence of that knowledge, might not have justified that conclusion? In Ball v. State, 29 Tex. App. 125, 14 S. W. 1012, 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 deceased towards the defendant, and also to the motive and conduct of the defendant,"— citing Russell v. State, II Tex. App. 288. We would not be understood as indicating any opinion that the deceased made an attack upon the defendant, or was in any wise the aggressor, but there was evidence on the part of the defendant to that effect before the jury, which it was fully as much their duty to weigh and consider as the testimony on behalf of the prosecution showing the defendant to have been the aggressor.

    In Rutledge v. State, 88 Ala. 85, 7 South. 335, 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 adduced as a predicate therefor, may go further, and strengthen it. by showing that the deceased had threatened him, or entertained ill feeling, towards him, or that there had been difficulties between them; * * * or, to state the principle in a more concrete form, the evidence adduced 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, bloodthirsty 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." 1n Copeland v. State, Horr. & T. Cas. 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 rencounter. 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 was 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 shotgun 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, 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 rencounter were seized upon by defendant as a pretext to execute a previously formed design to take the life of deceased. While the defendant had 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, 11 South. 250, we said: "Charge No. 14 assumes, as matter of law, that, on the facts thereon 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 could 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 Baldwin v. State, 111 Ala. 12, 20 South. 528.

    There was and could have been no dispute about the defendant's right to carry a shotgun, 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. State, 117 Ala. 9, 22 South. 666, 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 was 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 show that Hale was the aggressor. Moreover, the proof concerning hostile demonstrations on the part of Hale was insufficient to raise the question of self-defense. Rogers testified that Hale threw his hand to his hip pocket; but there was 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 was so aggressing, he could not invoke the principle of self-defense. Under the circumstances in proof in that case, the evidence there offered was properly excluded, under the general rule declared in Robinson v. State, 108 Ala. 14, 18 South. 732, which was 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 BRICKELL, O. J., before his retirement, and is adopted by a majority of the present court.

    TYSON, J. (dissenting). The writer of this opinion presided at the trial of the defendant in the court below, and for this reason he would have preferred not to participate in a discussion of this case in this court . The law, however, does not disqualify him from sitting, but, on the contrary, imposes upon him the duty and responsibility of declaring the law as he believes it to be. The importance of the question involved, and the conviction that there was no error committed on the trial, warrants him in expressing his views.

    The sole proposition upon which a majority of the court rest the decision for a reversal was the refusal to allow defendant to offer testimony tending to establish that illicit sexual relations existed between the deceased and defendant's sister, Mrs. Miller, for some months prior to the killing. 1n my opinion, some of the conclusions reached by the writer of the main opinion can be shown to be erroneous by a review of the testimony as disclosed by the record, and by keeping in view the order of its introduction in the trial court, bearing upon this question.

    I do not deem it necessary to state the evidence introduced in behalf of the state tending to establish the culpability of the defendant, nor all the evidence offered by him to prove his innocence, but will confine my statement of it, strictly, to such portions as tend to shed light upon the question under consideration. Before doing so, however, I desire to state what the record does not contain. It nowhere appears that the defendant's sister was a widow, as stated in the main opinion. All the witnesses who speak of her designate her as Mrs. Miller. This would authorize the presumption, and, indeed, we must presume, that she was a married woman, living at the time with her husband. Again, the evidence is entirely wanting to show as to where she resided,— presumably, in the absence of proof to the contrary, with her husband; and it is not shown that defendant resided with them, in the same house. On the contrary, it is disclosed affirmatively that the defendant, at the time and prior to the killing, was living at the home of his kinsman W. S. Hartley, assisting him in caring for and nursing his sick wife. It appears that the only threat ever communicated to defendant was the one made to W. S. Hartley, the first witness examined by the defendant. He testified to a conversation with the deceased on the day of the killing, in which deceased said to him; "Tell John Gafford, if he is at your house, that he [deceased] was going to kill him; that the country was not big enough for them both." To this statement witness asked, "What's the trouble?" to which deceased replied, "He knows what's the trouble; you tell him what I say." It nowhere appears in this conversation that any allusion was made to Mrs. Miller, or the alleged relations that existed between her and deceased; and the defendant in his testimony, in narrating what this witness told him as to this threat, does not intimate that he had been informed by Hartley that deceased made any reference to his sister. in fact, he says that Hartley simply told him that deceased said "that this country was not large enough for us both." For aught that appears from the above, this threat had reference to some other matter of controversy between deceased and defendant. The testimony offered by defendant to establish acts of adultery, and excluded by the court, is not shown to have been communicated by the witnesses to him before the killing. Indeed, the only facts disclosed by the evidence introduced by defendant , tending to show there was any controversy between deceased and defendant over Mrs. Miller, appears in defendant's testimony as occurring just before the killing, which is in the following language: "Lloyd said he had heard some talk in Greenville, and defendant said he was surprised that Lloyd had broken his agreement. Lloyd asked, Bow?' 'By lending her your buggy,' said defendant. Lloyd said he was not at home when she got the buggy; that his wife lent it to her. 'Well,' said defendant, 'that is all right, if you did not let her have 'it."* in offering the testimony of specific acts of adultery, there was no intimation by counsel, and it was not stated to the court, so far as appears in the record, that either of the witnesses who were called to testify to seeing specific acts of adultery between deceased and Mrs. Miller had ever informed defendant of what they had seen. it is upon the refusal of the court to permit this evidence to be introduced that defendant's counsel in their brief complain.

    Before entering upon a discussion of the question raised by this ruling of the court, I desire to dispose of the question propounded by defendant's counsel to him relating to this subject; and, in order to do so intelligently, the fact must not be overlooked that there was no evidence before the court tending to establish any illicit intercourse between deceased and Mrs. Miller, when the question was asked, and we must not be unmindful of the rule, so often announced by this court, that error will not be presumed, but must affirmatively appear from the record. Wilson v. State, 113 Ala. 104, 21 South. 487; Hurd v. State, 116 Ala. 440, 22 South. 993. The question propounded was: "Were you aware of any illicit intercourse between Lloyd and your sister? (The solicitor objected, and the court sustained the objection of the solicitor, and the defendant duly and legally excepted to the ruling of the court.)" I have quoted the exact language of the question asked and the objection and rulings of the court. It will be observed that only a general objection was made by the solicitor, and, if there existed any legal objection to the question, this court will be constrained to hold that the ruling of the court, in refusing to allow the question to be answered, was without error. Cobb v. State, 115 Ala. 18, 22 South. 508; Wilson v. State, supra; Hurd v. State, supra. The question was undoubtedly leading, and assumed as a fact that illicit intercourse between deceased and Mrs. Miller existed, when no such proof had been allowed to be introduced, and none had been offered, tending to establish such a relation of which defendant had been informed by the witnesses called to testify to it. Green v. State, 96 Ala. 29, 11 South. 478. "in order to reserve an available objection to the exclusion of evidence, a proper question must be asked." 8 Enc. Pi. & Prac. 236, and note 4. Besides, an offer must have been made showing what evidence would be given if the witness was permitted to answer the question and the purpose and object of the testimony sought to be introduced. 1d. 1n the case of Tolbert v. State, 87 Ala. 27, 6 South. 284, Judge Stone, in speaking on this subject, said: "Several objections were made and sustained to questions propounded to witnesses; but it is not shown what answers the witnesses were expected to give, nor, indeed, that they could have given any information on the subjects inquired about, affecting the defendant. We cannot consider these objections."

   There was other testimony introduced by defendant, after he was examined as a witness, but it contained no reference to threats, or the alleged relations between deceased and Mrs. Miller. It, however, does appear that, on rebuttal, the state introduced as a witness the father of the deceased, who testified to two distinct interviews between defendant and deceased,—one had at Hartley's house one week before the killing, and the other at the home of the deceased on Saturday night before the killing. 1n the first conversation the subject of discussion was whether there was any truth in the threats that each had been reported as making against the other, and a charge by defendant that deceased had been lending his buggy to Mrs. Miller, which was denied by deceased. In the second conversation defendant asked deceased "if there was any foundation in the rumor about you and my sister," to which deceased replied: "There is no truth in the rumor; I have always had the greatest respect for her." That defendant and deceased parted at the end of each of the interviews very friendly. I have alluded to this testimony for the purpose solely of showing that it cannot, in my opinion, affect the question under consideration, should it be construed, as it seems to be by the learned judge in his discussion of this question, that it showed that improper relations existed between deceased and Mrs. Miller, and, as a result, that an injustice was done defendant by reason of the rulings of the court in this respect. in that "the jury would naturally look in vain for any motive that might have impelled the defendant to become the aggressor" after a friendly separation between them. Upon whom should the blame rest? Trial courts are not clothed with the power or authority to direct the manner in which parties litigant try their causes. Neither can they compel the order in point of time in which testimony shall be offered, nor are they presumed to know what state of facts will be proven by any witness. To so bold, as is clearly held in the opinion of my Brothers, is to say that the trial judge must possess a mind capable of penetrating the future and foretelling future events. in other words, he must be capable of anticipating the character and nature of the testimony of every witness to be examined, when called upon to decide the admissibility of evidence which in his opinion at the time is improper.

    I feel confident that what 1 have said demonstrates that there was no error in the refusal of the court to allow the question to be propounded to defendant, and reduces the points of difference between myself and the majority of the court to a single inquiry. It is whether the specific acts of adultery between deceased and Mrs. Miller, uncommunicated to defendant, were admissible in evidence for any purpose. Leaving out of consideration for the present the element of self defense, and according to the defendant the same protection which the law accords to a husband who kills the adulterer of his wife,— which, however, under the circumstances of this case, 1 shall show, later on, that he is not entitled to,—let us inquire what were the husband's rights in such cases. The rule stated in 2 Bish. New Cr. Law, § 708, as follows: "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; but if, on merely hearing of the outrage, he pursues and kills the offender, he commits murder,"—seems to be, with one single exception, the universal rule of the courts of England and this country. In England this rule was so declared in the following cases and authorities: Reg. v. Mawgridge, Kel. J. 137, Fost . 296; Reg. v. Kelly, 2 Car. & K. 814; Manning's Case, T. Raym. 212; Fisher's Case, 8 Car. & P. 182; Maddy's Case, 1 Vent. 158. in America the following cases declare the same rule: Hill v. State, 64 Ga. 453, 1 Cr. Law Mag. & Rep. 355; Shufflin v. People, 62 N. Y. 229; People v. Osmond, 138 N. Y. 80, 33 N. E. 739; Sanchez v. People, 22 N. Y. 147; State v. Bulling, 105 Mo. 204, 15 S. W. 367, and 16 S. W. 830; State v. Holme, 54 Mo. 153; State v. France, 76 Mo. 681; State v. Pratt, 1 Houst . Cr. Cas. 249; People v. Hurtado, 63 Cal. 288; Reed v. State, 62 Miss. 405; Alfred v. State, 37 Miss. 296; Sawyer v. State, 35 1nd. 80; State v. Avery, 64 N. a 608; State v. Harman, 78 N. O. 515; State v. Samuel, 48 N. O. 74; State v. John, 30 N. a 330. in this state the rule seems to be that if the husband detects his wife in the act of adultery, and immediately slays her or her paramour, the law does not entirely justify or excuse him, but holds the provocation sufficient, as matter of law, to reduce the killing to manslaughter; and if he detects them, not in the act of adultery, but in a compromising position, under suspicious circumstances, and immediately kills one or both of them, it is a question for the jury whether the provocation was sufficient to reduce the grade of the offense, and whether he acted under the heat of sudden passion thereby excited, as in other cases of homicide under the heat of passion excited by great provocation. Hooks v. State, 99 Ala. 166, 13 South. 767; McNeill v. State, 102 Ala. 125, 15 South. 352; Dabney v. State, 113 Ala. 38, 21 South. 211. It will be observed that these three cases do not contravene the doctrine as laid down by Bishop, but simply do not require that it shall be necessary that the husband shall detect or discover them in the very act of adultery.

    I have examined all of the cases above cited, and many of the text-books, carefully, and have been unable to find any departure from that provision of the rule declaring that, if the husband, on merely hearing of the outrage, pursues and kills the offender, he commits murder, except the case of Copeland v. State, Horr. & T. Oas. 41, relied upon as authority in the main opinion, which I maintain stands alone in American and English jurisprudence, and of which I will later give a more extended notice. The reason underlying this rule in England is stated in the case of Reg. v. Mawgridge, supra, decided by the court of king's bench during the reign of Charles II., to be because the adultery of the wife is an invasion of the property rights of the husband. The language used by the court is in these words: "For jealousy is the rage of man, and adultery is the highest invasion of property."

    Pretermitting an extended discussion of the relations and rights of husband and wife under the old common law, I will content myself by showing, in a brief way, that this reason assigned by the courts of England was the only logical one upon which the doctrine could rest. He was her lord and master, and her will was subservient to his in all matters. So great was the matrimonial subjection of the wife to the husband that "for at least one thousand years," says Blackstone, in the kingdom of Great Britain, the command or coercion of the husband, either express or implied, "will privilege the wife from punishment, even for capital offenses." As civilization progressed, the marital rights of the wife, however, were enlarged, and her responsibility for crime increased; but even to this day, in England and this country, actual constraint imposed by the husband will relieve her from the guilt of any crime committed in his presence. 1 Bish. New Cr. Law, § 358 et seq. While the cases cited from the various courts of this country do not expressly assign any reason for the recognition of this rule, yet it may be fairly inferred from them that this right is accorded the husband on account of the jealousy and frenzy produced in his mind, incapable of being restrained by him, upon seeing or detecting an act so grossly violative of his sacred conjugal rights.

    The next question I will discuss is, did the defendant occupy such relation to Mrs. Miller as that he can be accorded the protection afforded her husband, had be, the defendant, detected or discovered her and deceased in an act of adultery, and slain him on the spot? We have heretofore shown that Mrs. Miller was a married woman, living, presumably, with her husband, and that defendant was not an inmate of their household. Therefore there could have been no relations between them which imposed upon him a legal right or natural duty to protect her chastity. She had surrendered those that existed between herself and her father's and mother's household when she made the allegiance by marriage with her husband. By this act of marriage, she formed new and different relations and obligations, which bound her to fulfill only to the satisfaction and gratification of her husband and their immediate household, and transferred to them alone this legal right and natural duty to protect her. These reasons, to my mind, are conclusive that the reason given by the courts which accorded to the husband this right has no application to this case. it is a maxim of the law that "reason is the soul of the law, and when the reason of any particular law ceases so does the law itself." Broom, Leg. Max. 159. 1n support of the correctness of my views, I quote the language as found in 1 Whart. Cr. Law, S 460, as follows: "A man cannot, indeed, thus avenge the adultery of his paramour; for the connection is not merely unauthorized by law, but in defiance of law. But where there is a legal right and natural duty to protect, there an assault on the chastity of a ward (using this term in its largest sense) will be sufficient provocation to make hot blood thus caused an element which will reduce the grade to manslaughter. * * • Supposing the injury to female chastity to be avenged in hot blood by a brother, a father, or other person having a right to protect the person injured, the offense is but manslaughter. But a brother cannot, after his sister has been ap[25 So.—2.] prehended in adultery, set up the provocation as a defense to an indictment against him for killing her paramour." In the case of Lynch v. Com., 77 Pa. St . 205, the supreme court of Pennsylvania held, where Lynch, the defendant, who lived with his sister, a married woman, whose husband was away from home and had been for five weeks, suspecting that she was in the act of adultery, listened at the door of her chamber, and, being confirmed in his suspicions, took his knife from his pocket, opened it, and forced the door in; he found her rising from the bed, undressed, and a man in bed; he stabbed the man three times with the knife; of one of the strokes the man died,—that the provocation was not sufficient to reduce the killing to manslaughter. The foregoing demonstrates, to my mind, conclusively, that deceased could not have regarded defendant as an obstacle to his illicit intercourse with Mrs. Miller, if it existed; and that the jury would not have had a right to infer, had the fact of such intercourse been proven, a motive on the part of deceased, as said by my Brothers, "to remove a dangerous obstacle out of the way of his illicit enjoyment."
    The opinion of my Brothers, in treating of the doctrine of self-defense, proceeds upon the assumption that the fact of sexual intercourse between deceased and Mrs. Miller was known to defendant. This I have shown to be erroneous. The testimony most favorable to this contention was that of the father of the deceased, which I have shown was introduced by the state on rebuttal. it nowhere appears in defendant's testimony. So, in dealing with the rulings of the court on this question in connection with the defense of self-defense, we are bound to do so upon the state of the proof before the court at the time of its rulings. The only theory, therefore, upon which the main opinion is defensible, is that this testimony stands upon the same footing with uncommunicated threats. in discussing the declarations of deceased other than threats, the supreme court of California, in the case of People v. McLaughlin, 44 Cal. 439, said: "We do not see that the deceased stood in any such relation towards the commonwealth as to render his declarations admissible as evidence. It cannot be properly said that, in prosecution of offenses mala in se, the commonwealth asserts a private right, or maintains an individual interest, in any such sense as may be affected or bound by hearsay statements of those who may have been the victims or objects of a criminal act on their property or person. There is no such legal identity or privity between them and the commonwealth as to render their statements admissible in behalf of those who are charged with the commission of the crime." This rule would, of course, govern as to the admissibility of acts of deceased of like import. The general rule is that the defendant charged with a crime is limited in the introduction 'of evidence to such acts and declarations as constitute a part of the res gestae; "in other words, they must stand in immediate causal relation to the act, and become a part either of the action immediately producing it or of action which it immediately produces. incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act." Whart. Cr. Ev. (8th Ed.) § 263, and note. The only exception to this rule that 1 have been able to find is that the acts or declarations of deceased, indicating a hostile condition of his mind towards the defendant, are admissible in cases of doubt as to who was the aggressor, and to explain the nature and character of the assault, if made by him. And this doctrine is treated by all the text writers upon the subject of evidence as an exception to the general rule, and the only one recognized by them. All of them treat of the law of self-defense and of threats, communicated and uncommunicated, and, if the law be as contended for by my Brothers, it is, indeed, passing strange that not one of these writers upon the subject of criminal law, nor any of the learned judges in the numerous cases which have been decided involving the doctrine of threats, ever intimated that the cause from which the threats made by deceased emanated was admissible. Mr. Rice, in his work on Criminal Evidence, limits the doctrine to threats, and, inferentially, excludes even acts indicating a hostile mind.

    Should I concede that the threats made by deceased emanated from a belief that the defendant was interfering with his relations with Mrs. Miller, 1 must confess I cannot see how the evidence of the acts of adultery would add any potency to their intensity or give them a deadlier hue of hostility. While this court has held in a number of cases that evidence of former difficulties between the defendant and the party slain by him may be introduced by the state for the purpose of showing malice or motive for doing the deed, yet the inquiry was limited strictly to the fact of the difficulty, refusing to inquire into its merits or the particulars, and this, too, upon cross-examination by the defendant for the purpose of showing that the deceased was at fault in the former difficulty. Many of these cases show that the party slain had made threats against the defendant . The reason given by the court was that "any evidence touching the merits would have multiplied the issues before the jury, and would have served no other purpose than to distract and divert their attention from the real issues they were to try." Commander v. State, 60 Ala. 1; McAnnally v. State, 74 Ala. 9; Gray v. State, 63 Ala. 66; Rutledge v. State, 88 Ala. 85, 7 South. 335; Hudson v. State, 61 Ala. 333; Lawrence v. State, 84 Ala. 424, 5 South. 33; Stitt v. State, 91 Ala. 10, 8 South. 669; Jones v. State, 116 Ala. 468, 23 South. 135. 1t certainly will not be denied that, if defendant had been permitted to introduce this evidence, the state would have had the right to contradict it, and to this end introduce testimony to disprove it . So the issue tried would practically have been the one of illicit sexual intercourse between deceased and Mrs. Miller, instead of the crime as preferred by the indictment against the defendant.

    The only case of this court cited by my Brothers upon which they rely for the latitude which they allow for the admissibility of this evidence is Mattison v. State, 55 Ala. 224. I have no controversy with the doctrine announced in that case, but insist that a proper application of it is an authority for my contention and in perfect harmony with the principles declared in Commander v. State and other cases cited supra. This court there said: "1n 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. Human transactions are too varied to admit of such clear declaration of the rule. Whatever tends to shed light on the main inquiry, and does not withdraw attention from this 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. On the other hand, undue multiplication of the issues is to be steadily guarded against, as tending to divert the minds of jurors from the main issues." 1n the main opinion, while a portion of these qualifying words are quoted, still it is apparent that no importance is attached to them. in fact, they are entirely ignored, and the broad language, "whatever tends to shed light upon the main inquiry," is made the basis of authority to sustain their views.

    And these principles would be applicable if the defendant had known of the acts of adultery. in the case of State v. Neville, 51 N. C. 423, the evidence introduced by defendant tended to show that deceased was advancing upon him with a drawn knife, after hot words had passed between them, when he shot and killed him. The defendant offered to prove that . on the evening before the killing, the deceased came to his home, and tried to ravish his wife. The court below refused to permit him to do so. Justice Ruffin, in an able opinion, which is the leading authority in this country on this subject , speaking for the court, held that , "if admitted and believed, it could not change the character of the offense, and o tight to have been rejected." 1n the case of State v. Herrell, 97 Mo. 105, 10 S. W. 387, the defendant killed the paramour of his mother, who was a widow, in a sudden rencounter, and there was testimony tending to show he acted in self-defense, and this was one of his pleas. He offered to prove that the deceased and his mother had been living in adultery. The court said: "All this testimony as to deceased having lived in adultery with defendant's mother was wholly outside of the case, and constituted no palliation or mitigation of defendant's guilt of the homicide, and should not have been admitted." 1n the case of State r. Wilson, 88 Conn. 126, the defendant offered to prove that, while a prisoner confined in the state prison as a convict for a long time previous to the killing and at the time of the killing, the deceased, who was the warden of the prison, fed him on "putrid and stinking meat," and that, by reason thereof, he was compelled to kill deceased in self-defense, which was refused by the lower court . The supreme court of Connecticut affirmed this ruling, saving: "1f all the prisoner claimed to be able to prove had been proven or admitted to be true, the court would have been bound to instruct the jury that it furnished no justification for the killing. • • • The suggestion of counsel that the evidence might be admissible to mitigate the offense was without force; for the undoubted effect of the evidence was to show that the killing was intentional, deliberate, premeditated, and not occasioned by any sudden provocation." 1n Rogers v. State, 22 South. 666, 117 Ala. 9, the evidence of the defendant showed that he was the father of Emma Rogers, a girl about 13 years old; that the deceased carried her to church on Sunday night before the homicide, and had never brought her back; that he (defendant), who was away, returned to Gadsden Tuesday evening, and some of his children told him that deceased was back, and had a gun, and had said if he (defendant) asked him anything about Emma he was going to kill him; that on the morning of the killing he saw deceased at one Patterson's house, and that, upon going up to the crowd who were sitting on the front porch, he asked deceased where his daughter was, to which he made no reply, and he then asked him why he had carried her off, and that to this inquiry the deceased said he carried her off because he wanted to, and then threw his hand to his hip pocket, whereupon defendant shot him. The defendant then offered to prove, by other witnesses, that deceased had carried his daughter from the church on Sunday night next before the killing to the house of a kinswoman of his, and that during the night, between midnight and day, he induced the girl, under promise of marriage, to go with him to Ashville, Ala., and stopped at the house of a sister of deceased; that the two stayed at the house for a day and night, when the deceased left Tuesday, and returned to Gadsden, Ala., leaving the girl in Ashville, not having married her, or even offered to marry her; and that these facts were communicated to defendant a short time before the homicide. The circuit judge refused to permit the evidence to be introduced. On appeal to this court, Justice McClellan, delivering the opinion, said: "The facts that the deceased, a boy 16 years of age, carried the daughter of defendant, a girl of 13 or 14 years, from Gadsden to Ashville, three or four days before the homicide, under a promise of marriage; that he did not marry her; and that, leaving her at Ashville, he returned to Gadsden two days before the shooting,—can neither justify nor palliate the defendant's act in killing him, nor shed any legitimate light on the transaction. And this would be true, even had his wrong been more aggravated,— even had he debauched the girl, of which there is no pretense. in such case. if the mortal blow had been given by the father immediately upon hearing of the wrong to his daughter, and in the heat of passion engendered by the fact coming to his knowledge, all the facts would have been admissible to eliminate the element of malice from the act, by referring it to passion which had not had time to cool, and thus reducing the homicide to manslaughter. But there is no pretense that the homicide was committed under these circumstances. To the contrary, it affirmatively appears that the defendant came to a knowledge of all the facts—as full knowledge as he had at the time he shot deceased—two days before the shooting occurred. This court is firmly committed to this view, in consonance with long-established principles, and we take this occasion to utterly repudiate what is said in the case of Flanagan v. State, 46 Ala. 703, to the contrary, and on the point under consideration that case is overruled. The trial court did not err, therefore, in its rulings on the proposed evidence. The homicide involved here was either murder or justified on the ground of self-defense." This case, however, was reversed upon the refusal of the lower court to give a charge requested by defendant , On the second trial, the record shows that the evidence introduced by defendant tending to establish self-defense was substantially the same as upon the first . The defendant then offered to prove that deceased did have sexual intercourse with his daughter on their trip to Ashville, under promise of marriage. Upon a second appeal to this court (23 South. 1007), Justice McClellan, speaking for the court, said: "On this appeal, the court holds that the trial court in its rulings followed the ruling of this court on the former appeal, and there is no error in the record. Rogers v. State, 22 South. 666." The main opinion undertakes to distinguish this case from the one under consideration, and holds, as a matter of law, that the proof concerning hostile demonstration on the part of Hale, the deceased, was insufficient to raise the question of self-defense. With all due respect to the opinion of my Brothers, 1 submit that their reasoning is fallacious and indefensible. The facts in the two cases are practically the same, except that in the Rogers Case the defendant was the father and the natural guardian of the chastity of his 13 year old girl, and the outrage upon her was known to him at the time of the killing; while in the case under consideration, as we have shown, the defendant was not the guardian of Mrs. Miller's chastity, and did not know of any acts of adultery between her and deceased. 1t will be observed that in each there were threats made by deceased against the defendants. In the Rogers Case the threats of deceased were directly traceable to the act of adultery with defendant's daughter, whereas in this case they were, at best, merely inferably traceable to the acts of adultery between deceased and Mrs. Miller.

   If the specific acts of adultery offered to be proven between deceased and Mrs. Miller were unknown to defendant, as l contend they were, but he merely suspected the relation to exist, then the case of Robinson v. State, 108 Ala. 14, 18 South. 732, is directly in point. The evidence in this case for the defense tended to show that , when approached by defendant, the deceased was in a conversation with a 16 year old sister of the former; that defendant asked the deceased his intentions, and called his attention to the fact that he had told him to let his sister alone; and that, after some quarreling, the deceased drew his pistol, and fired twice upon the defendant, and that the latter returned the fire, killing the deceased. During the progress of the trial the defendant showed that a note from his sister was found on the body of the deceased, and offered to prove the contents of the note, stating that this would show that deceased had met the defendant's sister at the place of the killing by appointment, and for the purpose of having illicit intercourse with her. The court refused to allow the note in evidence. Again Justice McClellan delivered the opinion of the court, in which he said: "Neither the contents nor the existence of the note received by the deceased from the defendant's sister, and found on the person of the former after the homicide, nor the note from deceased to the sister to which this was a response, was known to' the defendant at the time of the killing. His conduct, therefore, could not possibly have been influenced in any degree by these notes; and, of course, they could not be looked to, to furnish a circumstance either of guilt or innocence, nor of aggravation or palliation, in respect of the offense for which he was tried and convicted. Had he known of this correspondence and its character, it, and his knowledge of it, would have been competent evidence of premeditation and malice on his part, unless he came by it for the first time to a knowledge of the illicit relations between deceased and his sister, and immediately, in the heat of passion engendered by it, and before cooling time, as the law wisely defines that period, he had shot and killed deceased. As he did not know of it at all, the court properly excluded it from the jury." This case is not only authority for the proposition for which l have cited it, but also for the doctrine laid down in the case of Rogers v. State. If dictum upon this last point, it is in harmony with every decision of the American courts except the decision in the case of Copeland v. State, Horr. & T. Cas. 41, heretofore referred to. In the case of People v. Osmond, 138 N. Y. 87, 33 N. E. 741, Justice Peckham said: "Again, counsel for the defendant claims evidence should have been permitted, even though the defendant was ignorant of it, which tends to show that his wife and Burchell were maintaining illicit relations. • • * The principle is not the same as that decided in Stokes v. People, 53 N. Y. 164. There the question was in regard to the character of the encounter which took place between the parties when the shooting was done. Was it done by Stokes in self-defense or was he the aggressor? It was held competent to prove the fact that the deceased had himself made violent threats against Stokes shortly before, even though those threats had not been communicated to defendant. This was upon the ground that the jury might consider the fact in determining the character of the encounter between the parties. But how can acts of infidelity, or acts which tend to prove infidelity on the part of the wife, in any degree tend to show the state of the mind of the defendant upon this subject, if such evidence had not been known or repeated to him? We entertain no doubt of the correctness of the ruling of the court below in this case."

    On account of the length of this opinion, l must content myself with only a short criticism of the opinion in the case of Copeland v. State, upon which the decision of the majority of the court in this case relies mainly for their conclusion. As a fair criticism of it, l adopt the language as used by the attorney general in his brief, as follows: "A casual reading of this case shows that Judge Turley was swept off his feet by the passion aroused in him by the testimony in the case. Not a single authority is quoted by him in support of his contention. And, furthermore, he does not confine himself to a review of the law of the case, but reviews, in detail, the testimony of all the witnesses examined in the court below, and assumes the province of the jury, and decides the facts." Besides, it does not go to the length of holding that, if the act of adultery had been unknown to defendant, it would have been considered by the court. In the main opinion it is said, "If the question of self-defense were out of this case, it would be quite clear that all testimony of this character would be inadmissible for the purpose of justifying the murder, and would be equally unavailing to reduce the killing from murder to manslaughter." The argument is, as self-defense is in the case, the defendant may introduce this testimony for the purpose of justification, which l have shown tends alone to establish that the killing was intentional, deliberate, and premeditated. if this is sound logic, he may take the sword of justice, and convert it into a shield to protect himself from the legal consequences of a deliberate murder. In my opinion, the judgment of the court should be affirmed.

    HARALSON, J., concurs in the conclusion reached in the foregoing dissenting opinion. (120 Ala. 415)


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