The only evidence going to sustain the verdict of the jury is the fact of the killing of the deceased by the defendant by shooting him with a pistol, facts admitted by the defendant, and in nowise inconsistent with self-defense.
It is familiar law that: "Malice may arise on the instant; and from the use of a deadly weapon, whereby one intentionally takes the life of another, the law raises a prima facie presumption that the killing was done maliciously, unless thecircumstances of the killing disprove malice." Dixon v. State,128 Ala. 54, 57, 29 So. 623, 624. (Italics supplied.)
It is also well settled that: "Whenever there are any facts testified to on a trial for murder, and which are necessary and are relied upon to sustain the charge of murder, and a jury could legally infer from the facts proving the offense that the defendant acted in self-defense, or the homicide was the result of sudden passion, engendered by sufficient provocation, and without malice, it is error to charge the jury as to the presumptions arising from the use of a deadly weapon, without accompanying such charge with the further statement, 'unless the evidence which proves the killing rebuts the presumption.' " Hornsby v. State, 94 Ala. 55, 66, 10 So. 522, 526.
The majority opinion promulgated on the first application for rehearing concedes: "If the jury had accepted in full the evidence of defendant and his wife [the only eye witness to the tragedy], they would probably have acquitted him on the doctrine of self-defense."
The necessary inquiry therefore is: What reasonable basis can be found in the evidence for not accepting the evidence of the defendant and his wife, aided by the presumption of innocence, as it was?
The answer of the majority is: (1) The presumption of malice arising from the use of a deadly weapon; (2) the evidence offered by the state going to show defendant's bad character; and (3) the interest of the defendant and his wife in the result.
We will now examine these bases of non-acceptance in the order stated. The circumstances attending the killing, as disclosed by the undisputed evidence, both of the state and the defendant, affords no basis for the presumption of malice from the use of the pistol by the defendant on the occasion. The evidence shows that the deceased had been working on and worrying with his old Ford automobile all day, trying, with the aid of a mechanic, to get it to run, and about night got it started, and on his way home the automobile stalled in a mud hole at the top of the hill above defendant's home. That the starter stuck and would not start the motor; that deceased trudged down the road bare-footed and called his neighbor and friend, who had just returned from his barn where he had been to look after the comfort of his faithful animal — a mare that was expected to give birth to a colt — and was preparing to retire, but had not undressed. The defendant's evidence and that of his wife shows that when defendant was preparing to go to his barn in the dark, he picked up a thirty-two caliber Smith and Wesson hammerless pistol and put it in his overall pocket; that he was not a habitual pistol carrier, but that this pistol was kept in the house, because of a threatening anonymous letter defendant had received some three or four years previous.
Defendant, after pulling on his shoes, went with deceased and made every effort to aid him to get the car started, without success, when deceased abused defendant and his wife because they refused to use their automobile on the muddy road to push deceased's car, for reasons stated that were reasonable. The defendant's evidence, and that of his wife, goes to show that deceased assaulted the defendant, kicked him down against a stump, and continued the assault by striking defendant with a piece of old buggy spring that was used as a tire iron, and had been used by the parties in trying to unlock the jammed starter on deceased's car. That just before the killing the deceased had knocked defendant to his knees, and was threatening to continue the assault, and while in this position the defendant shot the deceased *Page 487 once with said pistol and killed him.
The defendant's testimony is corroborated by the physical facts given in evidence by the state's witnesses showing that the piece of buggy spring was on the ground where deceased fell almost within grasp of his right hand.
And by the testimony of the state's witnesses, Dr. McAdory and Coroner Moss showing that the bullet entered deceased's body about four inches below the left armpit, "in the axillary line, just behind the axillary line, that is the line that runs from the armpit down the center of the body * * * between the sixth and seventh rib," ranged upward about thirty degrees, passed through the left lung behind the heart and through the large aorta and on through the right lung and lodged in the right shoulder.
This testimony clearly corroborated the defendant's testimony and that of his wife that defendant was down when he shot deceased, and that deceased was standing over him, in the act of continuing the assault.
Mrs. McDowell testified: "I saw my husband right after the difficulty. I saw one skinned place up here, one here and two places on the side of his nose, and the blood was dripping on the side of his face. There was an injury on his arm, a big place just below his elbow."
The defendant testified: "He hit me two licks up here on the head, and hit me one back across this way, knocking a plug out of my teeth, knocked one of my teeth out. I throwed up my left hand but he hit me two licks there, and two knots on my elbow bigger than my thumb. My face was bleeding. It was a week or better before I could shave."
The testimony of the sheriff is to the effect that he did not examine the defendant's head; that there were bloody places on the defendant's face, and abrasions on the defendant's nose, and "bruises" on his arm.
As before stated the circumstances of the killing as disclosed by this evidence "disprove malice."
The state's testimony, offered to show defendant's bad character, is without probative force in so far as truth and veracity is concerned. All the witnesses agree that defendant had the reputation of a truthful man, and as a man that paid his debts. Moreover, the defendant's testimony is corroborated by that of his wife, who is in no way impeached, and by the physical facts disclosed by the testimony of the state.
The law which permits the defendant to testify and permits a defendant's wife to testify in his behalf is a recognition of the fact that their testimony can not be capriciously disregarded because of interest in the result. It must manifest other infirmities, which, when considered with such interest, renders it unworthy of belief.
The solicitor, on the cross-examination of the defendant, brought into the case the source of the anonymous letter, a fact wholly immaterial, calculated to create a highly prejudicial atmosphere unfavorable to the defendant, and which probably influenced the result.
I am fully persuaded that the verdict of the jury is contrary to the great weight of the evidence and that the court erred in refusing the defendant a new trial. Roan v. State, 225 Ala. 428,143 So. 454.
Judgment of affirmance set aside and reversed and remanded.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur in the foregoing opinion.
The other Justices adhere to their concurrence in the opinions promulgated by FOSTER, J.