The appellant was indicted for the murder of Hattie Parker, and was convicted of manslaughter in the first degree; her punishment being fixed at two years in the penitentiary.
Charge 3, as written, was subject to criticism as having a tendency to mislead the jury. Aside from this, it was unquestionably misleading, in view of the particular circumstances incident to this case. It was agreed in open court that the state would not insist upon a conviction for a higher degree of homicide than murder in the second degree. The conviction was for manslaughter in the first degree. In the light of this, the charge would have been confusing to the jury.
Charge 6 is not clearly expressed, as appears from the concluding words, "even unto the death of the defendant." Moreover, the charge is substantially covered by given written charge 2.
Nelse Parker testified that about dark, on the day of the homicide, he saw the defendant, who inquired whether Hattie Parker (deceased) was up on the hill. Witness was asked what the defendant had at that time. He answered that she was eating an orange with a pocketknife. The court properly admitted this evidence. It might tend to show preparation for the crime, and for this purpose, if no other, was admissible. Rollings v. State, 160 Ala. 85, 49 So. 329; Underhill, Crim. Ev. p. 375; Finch v. State, 81 Ala. 49, 1 So. 565.
The witness Emmet Brown reached deceased immediately after the difficulty, while she was still on the ground. Deceased went to Sallie Espy's house, but "stayed there no time; she just whirled and came away, and went to Jane Sander's house." In response to a question as to how deceased acted after she left witness, he was permitted to state: "She left just like crazy like. She just went staggering like, and ran across to the house, and then went to Jane Sander's house." The defendant had gone to Jane Sander's house.
Assuming that the testimony was irrelevant and incompetent, its admission was without injury to the defendant. There was ample evidence before the jury, at the time, deceased was suffering from mortal wounds inflicted by a knife in the hands of defendant. Evidence that deceased was not normal, or that she was staggering, added nothing to the facts which were before the jury without objection.
The same witness Brown was present when deceased reached Jane Sander's house. He was asked: "What did she (deceased) say to Fannie, if anything?" He answered: "She said: 'You are so bloodthirsty, you ran up behind me and stabbed me; come out' — and that defendant replied: 'I am not coming out.' " This testimony was admitted over defendant's objection.
The silence of the accused, in the face of a pertinent accusation of crime, partakes of the nature of a confession. It is admissible as a circumstance tending to show guilt. Its admissibility is predicated on the accusation being heard and understood by the accused, and under circumstances calling for a denial. Underhill's Crim. Ev. pp. 153-158; Rowlan v. State,14 Ala. App. 20, 70 So. 953; Jones v. State, 156 Ala. 180. 47 So. 100. The statement referred to was, in our opinion, admissible as being within the res gestæ of the homicide. According to the witness, there was no appreciable interval between the cutting and the accusation.
Whether it was within the res gestae depends upon whether the circumstances are such as that it may, with reasonable certainty, be affirmed that the statement was produced by and instinctive upon the occurrence to which it related, rather than a retrospective narration of the occurrence. If it *Page 516 was an ebullition of a state of mind engendered by what happened, and not a mere statement of facts, as held in memory of a past transaction — if it was made so soon after the difficulty as that, under the particular circumstances transpiring between the difficulty and the making of the statement, it is reasonably clear that it sprang out of the transaction and stands in the relation of unpremeditated result thereof, the idea of deliberate design in making it being fairly precluded, and the statement tending to elucidate the difficulty — it is to be regarded as contemporaneous with the main transaction, and as a part of it within the rule as to res gestæ. Deceased was mortally stabbed, and was in a critical condition. There had been, it would appear, no opportunity for the formation of a deliberate statement. It appears with reasonable certainty that the statement was instinctive upon the difficulty, and not a mere narration of a past transaction. Nelson v. State, 130 Ala. 88, 30 So. 728; Holyfield v. State, ante, p. 162, 82 So. 652.
There is no error in the record, and the judgment is affirmed.
Affirmed.