We did not treat the ruling on motion for a new trial in our former opinion, for though counsel made reference to it in their brief it was not one of the two theories on which they declared in brief that they sought to effect a reversal. But we did then consider the motion, and on application for rehearing have given further consideration to it.
Defendant and his wife were the only eye witnesses, and their testimony relates an occurrence so unusual that the jury was probably authorized to discredit it, considering they both had a direct and material interest in the result, and the testimony impeaching defendant's character.
It is probably a fair inference that they had a sudden encounter without previous disagreement. But the nature of it and its details are known only to defendant and his wife. Defendant killed deceased with a deadly weapon, and intentionally, as we think the jury could infer. That raises a presumption of malice and unlawfulness, unless the circumstances and evidence rebut that presumption. 11 Ala.Dig., Homicide, p. 343, § 146, p. 345, § 151.
So that without credible evidence of the true facts and details that presumption would persist. If the jury had accepted in full the evidence of defendant and his wife, they would probably have acquitted him on the doctrine of self-defense. They might accept some of their evidence, but not all, or have been impressed they did not tell it all. *Page 485
There was much evidence of the bad character of defendant, not contradicted.
The degree of unlawful homicide could not be reduced to manslaughter on account of the use of offensive words not accompanied with an assault or a threatened assault. 11 Ala.Dig., Homicide, p. 290, § 45.
This might be sufficient to reduce the offense to murder in the second degree, but not below that.
We do not sit here as jurors. The jury acted on the evidence, and the trial court refused to set the verdict aside. They might very well have concluded that no assault was made on defendant, but that they had a sudden quarrel, and on account of opprobrious words used by deceased, defendant shot him.
We cannot say that such a finding would not be supported in view of the legal presumptions. And it is not our province to pass on the extent of the punishment fixed by the jury, unless it, together with other circumstances, show that the jury acted on the case under the influence of some improper sentiment sufficient to show that defendant did not have a fair trial, for which the verdict should be set aside and a new trial granted.
Application for rehearing will therefore be overruled.
ANDERSON, C. J., and BOULDIN and KNIGHT, JJ., concur.
GARDNER, THOMAS, and BROWN, JJ., dissent.