The situation here shown is the offer to prove by defendant what was his purpose in proceeding to a certain place to illustrate his conduct when he arrived there. But can it be shown by defendant's testimony to that effect on direct examination? In offering to testify that it was either to arrest a person who was then at the place or to get from him money which defendant claimed had been feloniously obtained from him by that person, he was proposing to explain the meaning of an act which he had done by testifying to his uncommunicated motive. We think this violates an established rule of evidence in this State. But it is said that this rule has not been uniformly observed, as in Inter-Ocean Casualty Co. v. Stallworth, 221 Ala. 71, 127 So. 850, 851, which it is claimed is a limitation or departure from it. But in that opinion it was observed that the question there was "not within the rule forbidding a witness on direct examination to give his secret motive or purpose in doing an act which he has done," citing Robinson v. Greene, 148 Ala. 434, 43 So. 797; Birmingham Ledger Co. v. Buchanan, 10 Ala. App. 527, 65 So. 667; Tennessee River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266. And it was said "The question called for a statement of fact: The description or designation of an occurrence; whether the gun was fired by him purposely; or whether it was discharged by accident."
The question we may also observe was not his secret purpose in firing the gun but whether he fired it as a voluntary act. If it was done by accident, he did not fire it, but it occurred as a result of a chain of circumstances. What he meant to say, we think, was that the firing of the gun was not his personal act but was the result of occurrences, not necessary to enumerate to be justified in saying that it was accidental. That is made manifest by the very words of the opinion in that case, as well as by *Page 266 the authorities cited. In Robinson v. Greene, supra, the plaintiff in a suit for false imprisonment was properly allowed to testify that he was detained against his will. "That being the statement of a fact." It was said to be not different from an inquiry of whether he consented to be detained. The case of Birmingham Ledger v. Buchanan, supra, was to the same effect, and was based on the case of Robinson v. Greene, supra.
The case of Tennessee River Nav. Co. v. Wails, supra, also cited in the Stallworth case, supra, is in reliance on the other two cited. It was held proper to allow a witness to testify that he was ready to load and unload ties on the barge (not his intent or motive in doing or not doing an act).
The very language of the Stallworth case, supra, and those cited, show a full recognition of the rule of exclusion of evidence by a witness on direct examination of what his motive or purpose was in doing an act. The Alabama cases which support that rule of exclusion extend to the early judicial history of this State as shown by the citations in the instant opinion written by Mr. Justice LIVINGSTON, and in the citations in the notes to 22 Corpus Juris Secundum, Criminal Law § 647, pages 992, 993; 30 Corpus Juris 153, note 46; 16 Corpus Juris 566, note 22. It has been held that one cannot testify to his mental anguish. Western Union Tel. Co. v. Cleveland, 169 Ala. 31,53 So. 80, Ann. Cas. 1912B, 534; Walling v. Fields, 209 Ala. 389,96 So. 471; Standard Oil Co. v. Humphries, 209 Ala. 493,96 So. 629.
A distinction was drawn in Alabama Power Co. v. Edwards,219 Ala. 162(13), 121 So. 543, between the physical fact and effect of fear as distinguished from mental anguish, but fully recognizing and reasserting the rule of exclusion of evidence by a witness on direct examination of his secret intent or purpose in doing an act.
A holding that the evidence here in question is admissible cannot be supported by the Stallworth case, supra, nor by any other Alabama case which we have examined.
We think that to do so is to overturn our cases numbering perhaps one hundred, and extending to our earliest judicial history.
We do not think the judgment should be reversed on account of the ruling of the court in refusing to permit appellant to testify that it was his intent or purpose in returning to deceased to talk about getting his money back, or in the alternative to arrest deceased for a felony committed in taking it from him by force and against his will. In this conclusion GARDNER, C. J., and BROWN, LAWSON and SIMPSON, JJ., concur with the writer. LIVINGSTON, J., expresses a contrary view as shown in his opinion, in which STAKELY, J., concurs, and dissent.
But we are all in agreement that there is error shown in another ruling of the court in sustaining objection to evidence offered by appellant.
Appellant testified in substance that as he approached Dodd and Russell (the deceased) both arose and that Dodd started to run away, but turned and came back, and that both started toward appellant; that he twice told Russell to stop, but that he kept coming toward him, and was coming rapidly and put his hand in his pocket; that he shot Russell when he was about fifteen feet away, and while still advancing on him with his hand in his pocket; that Russell weighed about one hundred and sixty pounds strong, though one arm was not so good. Appellant weighed about one hundred and thirty-five pounds, his right arm was amputated about two inches below the elbow, and his feet had been badly burned with the loss of some of his toes causing him to walk with difficulty.
The jury could infer from the evidence in the opinion of Justice Livingston, supra, that appellant went down the road to where Russell was on a mission justified by law, and for a peaceful purpose, to obtain his money claimed to have been forceably taken from him; and that when he approached Russell, the latter made an overt act and demonstration which the jury could infer was with a purpose to assault appellant before appellant shot him.
The court refused to allow appellant to introduce evidence of the character of Russell *Page 267 sell for peace and quiet, and of prior difficulties between them, and of threats made by him against appellant which had been communicated to him. We think that the situation thus disclosed required the court to allow him to make such proof.
Previous threats, whether or not communicated are under those circumstances, when self-defense is on the evidence sufficiently shown to justify its submission to the jury for the purpose of showing quo animo of such demonstration or attack, Roberts v. State, 68 Ala. 156; or to shed light upon who was the aggressor, Turner v. State, 160 Ala. 40,49 So. 828; Beasley v. State, 181 Ala. 28, 61 So. 259, or to give color and character to such aggressive conduct; and this rule applies to evidence of illwill, and previous difficulties in general terms, Narrell v. State, 222 Ala. 145, 132 So. 47; Buffalow v. State, 219 Ala. 407, 122 So. 633, and to evidence of the bad character of deceased for peace and quiet. Rutledge v. State, 88 Ala. 85, 7 So. 335.
Whether threats made in connection with the circumstances of the difficulty are sufficient to justify the homicide is a question for the jury, and they cannot be excluded "if there is the slightest evidence tending to prove a hostile demonstration, which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm," but "this principle is confined to defensive measures. It furnishes no excuse or palliation for aggressive action, nor when the difficulty is brought on or sought by the accused." Beasley v. State, supra [181 Ala. 28, 61 So. 260]; Turner v. State, supra.
If appellant approached deceased with the intent of renewing their difficulty after "cooling" time, and not for the purpose of trying to obtain his money in a lawful way, and not for the purpose in good faith of arresting him for a felony which had been committed, he would be the aggressor, and evidence of threats, former difficulties, illwill and bad character would not be justified. But if there is sufficient evidence to support a finding by the jury that a felony was committed by forceably taking appellant's money from his person or in his presence, and that he approached deceased in good faith either to recapture his money in a legal manner, or to arrest him for the felony, the evidence of threats and the like, is admissible. The claim of a purpose to act in a legal manner by appellant must not be a pretense or device to give legalized color to a purpose to renew the difficulty. Storey v. State,71 Ala. 329 (13 and 14); Beasley v. State, supra; Gibson v. State,193 Ala. 12, 69 So. 533.
We think there is sufficient evidence on the basis of the foregoing principles to require the court to allow evidence of threats, former difficulties, illwill, bad character for peace in respect to deceased. For this reason, the judgment must be reversed and the cause remanded.
Reversed and remanded.
All the Justices concur in the reversal.