[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 207 Defendant, appellant, was convicted of murder in the second degree. The evidence of the prosecution tended to show that the defendant and deceased, Erastus Lay, had a fight in the home of deceased a short time prior to the killing; that after this difficulty defendant left the house, went into the yard, picked up a small axe, returned to the house, renewed the difficulty, struck deceased in the head with an axe, and killed him.
Defendant contended that his hat and his children were in the house; that as he went on he front porch to get them deceased came out of the door with a rifle in his hand, presented it at defendant; and that he struck the fatal blow in self-defense. There was some evidence of threats made by deceased against defendant immediately following the first difficulty.
Many questions are urged by counsel for appellant as affecting the judgment with prejudicial error.
1. Mrs. Annie Lay, a witness for the state, and Ruby McElvain, a witness for defendant, were allowed to testify that the rifle or gun which the defendant claimed the deceased presented at him at the time of the fatal rencounter would not shoot.
If the circumstances attending the killing were such as to justify a reasonable belief that the defendant was in imminent danger of death or serious bodily harm, and he honestly believed such to be the case, it was immaterial whether there was such danger or not. Gray v. State, 171 Ala. 37, 55 So. 124; Hubbard v. State, 172 Ala. 374, 55 So. 615; Caldwell v. State, 160 Ala. 96, 49 So. 679; Twitty v. State, 168 Ala. 59,53 So. 308; Fantroy v. State, 166 Ala. 27, 51 So. 931; Kennedy v. State, 140 Ala. 1, 37 So. 90.
Defendant had the right to act upon the appearance of things, such appearance as would induce a reasonable person in defendant's position to believe that he was in imminent danger of serious bodily harm. He was not required, before striking in his own defense, to ascertain if the gun would shoot. Bluitt v. State, 161 Ala. 14, 49 south. 854; Chaney v. State, 178 Ala. 44,59 So. 605; Black v. State, 5 Ala. App. 87, 59 So. 692. The court erred in allowing the witnesses to testify that "the gun would not shoot."
2. J.H. Anderson, a witness for the state, testified that after the killing defendant and his wife went to witness' house, some distance from the home of deceased; that defendant's wife left witness' house, and in a little while returned; that shortly after her return witness overheard a conversation between defendant and his wife. He heard defendant say in that conversation that he wanted to go back down there (to the house of deceased), and she told defendant he need not go; "Erastus Lay is killed, if he ain't already dead;" that defendant replied, "God being my helper, I hope I have." Witness was asked, "Hope I have what?" and replied, "Killed him." It is insisted by counsel for admitting the above-mentioned declaration made subsequent to the killing upon the grounds: (1) That it was immaterial; (2) that it was not part of the res gestæ. This declaration, so separate in point of time and place from the killing, is not to be regarded as part of that transaction. At the time of the declaration the difficulty was a thing of the past, the defendant had left the scene, and the incident was closed. It was not of the res gestæ. Pitts v. State, 140 Ala. 70, 37 So. 101; Nelson v. State, 130 Ala. 83, 30 So. 728; Harkness v. State,129 Ala. 71, 30 So. 73; Hill v. State, 156 Ala. 3, 46 So. 864; Hickman v. State, 12 ala. App. 22, 67 So. 775. The declaration proved was a confession by defendant that he did the killing, and as such was material.
While a confession is prima facie involuntary and inadmissible, and as a general rule its admissibility is determined by inquiry made to ascertain whether the same was voluntary or involuntary, this is not the only way in which this fact may be ascertained. When the facts and circumstances under which the confession was made affirmatively show that there were no improper influences proceeding from the person to whom they were made, or from any other person, or from the circumstances surrounding the defendant at the time they were made, such confessions are prima facie voluntary and admissible. Heningburg v. State, 153 Ala. 13, 45 So. 246.
In a prosecution for assault with intent to murder, testimony of a witness that he had a conversation with the defendant at a church the next day after the shooting, and had asked him why he did it, to which defendant replied he would not have shot if the other party had not been trying to shoot him, was competent, though the witness had not been asked whether such confession had been voluntarily made. Bush v. State, 136 Ala. 85,33 So. 878.
In the instant case the defendant of his own accord made the statement to his wife, *Page 209 without any influence being exercised over him to induce the confession. The surroundings and circumstances in which the confession was made affirmatively show that it was voluntary. The court did not err in admitting it.
3. Appellant's counsel insists that the court erred in allowing the state to read portions of the testimony of Ruby McElvain and of Jewell Cox, taken at a preliminary trial before Judge H.L. Faulk, justice of the peace, reduced to writing and signed by the witnesses, without allowing witnesses to read the testimony or having it read to them. This objection was not made on the trial of the case, and cannot be raised for the first time here.
4. The verdict of the jury was as follows:
"We, the jury, find the defendant, Wyatt Cox, guilty of murder in the second degree, and sentence him to serve 10 years in the penitentiary."
Section 7087 of the Code, requires the jury, if they find the defendant guilty under an indictment for murder, to ascertain by their verdict whether it is murder in the first or second degree, and, if they find him guilty of murder in the second degree, the duty is imposed upon them by section 7088 of the Code to affix the punishment at imprisonment in the penitentiary for not less than 10 years, at the discretion of the jury. The verdict in the instant case was sufficient to support the judgment of conviction and the sentence imposed. The jury certified to the court in unequivocal terms the punishment they affixed. A verdict returned by the jury as follows: "We, the jury, find the defendant, Jim stewart, guilty of murder in the first degree, and sentence him to death by hanging" — was held sufficient in Stewart v. State, 137 Ala. 43,34 So. 818; Noles v. State, 24 Ala. 672.
5. Refused charges 1, 2, B-2, and C-3, requested by defendant, are faulty and were properly refused. It was the duty of defendant to retreat if he could do so with reasonable safety, without increasing his peril.
6. Charge 3 need not be considered, as the verdict was for murder in the second degree.
7. Charges 4 and 5 were properly refused. There was ample evidence to submit to the jury the question of the guilt vel non of defendant of murder in the second degree.
8. Charge A-1 reads:
"I charge you that, if the defendant was free from fault in bringing on the difficulty, he would be under no duty to retreat unless you believe he could have retreated without increasing his danger or with reasonable safety."
This charge states the law correctly, and should have been given. It dealt merely with the duty to retreat, and did not instruct the jury to acquit the defendant. Bluett's Case,151 Ala. 41, 44 south. 84; Hammil's Case, 90 Ala. 582, 8 south. 380; Deals's Case, 136 Ala. 52, 34 So. 23.
9. Charge 1-B is a copy of charge No. 26 in Bluett's Case,151 Ala. 41, 44 So. 84, and correctly states the law. Its refusal was error.
10. Charge I has been condemned in Ex parte Davis et al.,184 Ala. 26, 63 So. 1010; Arnold v. State, 18 Ala., App. 453,93 So. 83. The Davis Case, supra, expressly overrules Roberson v. State, 175 Ala. 16, 57 So. 829; Simmons v. State,158 Ala. 8, 48 So. 606; Walker v. State, 153 Ala. 8, 48 south. 606; Walker v. State, 153 Ala. 31, 45 So. 640 — cited by appellant's counsel.
11. Charge J was properly refused. It omits an essential element of self-defense, the duty to retreat. There was evidence that defendant provoked the difficulty in the home of the deceased, and that he could have retreated with reasonable safety.
In Cheney's Case. 172 Ala. 368, 55 So. 801, Cited by appellant's Counsel, and in which this charge was approved, the difficulty occurred in defendant's place of business, and he was under no duty to retreat. In Harris' Case, 96 Ala. 24,11 So. 255, the fatal difficulty took place in the home of defendant, and no duty was imposed upon him to retreat. This charge is not applicable in the instant case, as the duty was imposed upon the defendant to retreat, if he could do so with reasonable safety.
12. Charge D-4 was faulty because it is not predicated upon the evidence. The jury must be convinced "from the evidence beyond a reasonable doubt," and cannot decide cases upon convictions based upon anything but the evidence.
Defendant filed in the court below a motion for a new trial, the grounds therefor embracing the questions above decided. The motion should have been granted.
For the errors indicated, the judgement of conviction is reversed, and the cause remanded.