The refusal of the judge of the 4th judicial circuit to transfer this cause to a court in another circuit, when petition for that purpose was filed in vacation, under the “act to provide for a change of venue in certain cases,” approved January 26, 1875, constituted no' reason why the judge presiding at the trial, who was in no way disqualified, by relationship or otherwise, to sit therein, should grant the motion of defendant to continue the cause, or that to decline trying the same. .The object of the enactment was to expedite trials before disinterested judges and chancellors; and this object was as well attained by the trial in Colbert county, when the presiding judge there was free from the objection alleged against the judge of that circuit, as it could have been by a change of venue to a court in another circuit. The proper mode of testing the question, whether the reason was sufficient, which was assigned by the judge of the circuit for not granting the prayer of the petition, would have been by having that particular matter presented in a proper manner to this court for its judgment thereupon. The motions made tended only to an indefinite and aimless delay.
2. In respect to the statute referred to, it was passed after tbe commission of the offense charged against appellant, and after the finding of the indictment. It was, therefore, sxxbject to repeal or alteration by subsequent legislation, which in such case could not be held obnoxious to the constitutional prohibition against expoat-facto laws. We think the statute was, in fact, superseded by the provisions on the same subject in section 18, article 6, of the constitution of 1875-6, and at the time of the trial was not in force.
3. In Pritchett v. The State (22 Ala. 39), the person slain had made threats of personal violence against the prisoner, which had been communicated to him; and on the morning-preceding tiie day on which he was killed, the deceased had gone to the field in which the prisoner had been plowing, and with a pistol in one hand, and a rock or stick in the other, had forbid the prisoner’s going to his plow. Just before the killing, the prisoner was seen starting from his house, priming his gun, picking the flint, and crying; and proceeding to the premises of the deceased, and finding him at home, he said to him in a loud voice, “ Stop, I have come to shoot you.” Thereupon, the deceased stopped, turned round, and was shot by the prisoner and killed. On the trial, it was proved that the prisoner was, previously, a peaceable and orderly citizen, and he proposed to prove that the person he *87slew was a turbulent and quarrelsome man; wbicb tbe court, upon objection of tbe State’s solicitor, would not permit bim to do. In a very carefully considered opinion, sustaining the ruling of tbe court below, Chilton, C. J., speaking for tbe court, says; “ Tbe law, having respect to the nature of man, and aiming to arrive .at the true intent and motive wbicb charaetérize acts prohibited by it, allows every fact and circumstance immediately connected with the act, and wbicb tends to elucidate and explain its nature, or the motive and intent wbicb moved to its perpetration, to be given in evidence. It endeavors to adjust tbe measure of defense to tbe nature of tbe assault; and in doing this, it permits tbe party assailed to view the assailant, just as be is: for it is chiefly from a knowledge of tbe true condition of tbe parties, at tbe time tbe act is done, tbat we can arrive at tbe motives wbicb may reasonably be supposed to have influenced them. . In such a case, tbe act and status of the actor must be taken together. Thus it is, tbe character of tbe deceased may become a legitimate subject of inquiry, as connecting itself with tbe transaction wbicb it may serve to explain. But, however bad or desperate tbat character may be, and however many threats such person may have made, be forfeits no right to bis life, until, by an actual attempt to execute bis threats, or by some act or demonstration at tbe time of killing, taken in connection with such character or threats, he induces a reasonable belief on tbe part of tbe slayer that it is necessary to deprive bim of life in order to save bis own, or to prevent some felony upon bis person. And when- a homicide takes place under such circumstances as tend to show tbat tbe slayer acted in'self-defense, tbe previous threats of tbe deceased, bis conduct upon tbe fatal occasion, construed with reference to bis known character, and peculiarities having relation to such conduct, and tending to explain it, — all enter into, and form parts of tbe transaction, and may be properly received as evidence.” But, because that case ■was not one of self-defense, and the slayer sought bis enemy and killed bim, it was decided tbat the evidence of tbe character of tbe deceased was properly excluded.
We have quoted so largely from this thoughtful and judicious opinion, because, upon “ a principle of law of much delicacy and importance,” it seems to us to avoid, much better than any other we can now refer to, tbe two extremes — - tbat of not tenderly enough considering tbe situation in wbicb tbe accused was placed, on tbe one band, — and on tbe other, that of conceding too much indulgence to undisciplined passions; wbicb neither law nor religion can permit to be gratified by tbe sacrifice of a thing so sacred as human life.
*88In the present case, as in Pritchett’s, appellant sought his victim, following him from one place to another, until they met, and then accosted him with the challenging inquiry : “ Do you want anything out of me this morning ?” Soon after which, he fatally shot the deceased, at a time when the latter had no weapon drawn, nor any in fact, on his person. It was, in no legal sense, a case of self-defense; and the able judge who presided at the trial correctly ruled, that testimony of threats, alleged to have been made by the deceased two weeks before, could not be submitted to the jury as evidence in favor of the defendant. — See, also, Hughey v. The State, 47 Ala. 97.
There was no error in the charge given to the jury, which was excepted to, or in refusing the charge that was asked on behalf of defendant, and refused. The latter was objectionable, in reciting a fact that was not proved; and also because, without explanation, it would be apt to confuse, instead of aiding the jury.
4. But there was error in excluding the testimony offered to show that Hitchcock, a witness for the State, had given a different account of the circumstances of the killing of Smith by the defendant, when examined upon the application for bail, from that which he gave on the trial. Hitchcock’s attention had been called, on cross-examination, to the difference between these two statements. He was asked if, on the former occasion, he did not testify, “that defendant got off his mule, and said, ‘ Come out in the road,’ before defendant raised his gun; ” to which he replied, that “ he did not remember whether he said so or not.” On the trial, this witness testified, that defendant “ said to the deceased, ‘ Do you want anything out of me this morning ?’ and raised his gun;” and he represents deceased as having afterwards gotten off his horse.
The rulings, in such cases, have not been uniform. Phil.lipps, in his work on Evidence, says, that Tindal, C. J., in a case before him, “ said he had never heard such evidence admitted in contradiction, except where the witness had expressly denied the statement, and he rejected the evidence ; and on another occasion, Lord Abinger, C. B., expressed a similar opinion. But Parke, B., in a case before him, held that contradictory statements of a witness could be introduced to impeach his evidence; though, in order to lay a foundation for them, and to enable the witness to explain them (and, as he conceived, for that purpose only), ‘ the witness must be asked whether he ever said what is suggested to him, with the name of the person to whom, or in whose presence he had said it, or some other circumstance sufficient *89to designate the particular occasion. If the witness admits the conversation imputed to him, there is no necessity to give further evidence of it; but, if he says he does not recollect, that is not admission; and you may give in evidence, on the other side, to prove that the witness did say what was imputed, always supposing the statement to be relevant to the matter at issue.” — 2 Phillipps on Ev. (4th Am. ed., with Cowen & Hill’s and Edwards’ notes), 959-60. We agree with Mr. Phillipps, that the ruling of Baron Parke is the most sound and fittest to be followed. If the rule were otherwise, it might happen that, under the pretense of not remembering, a witness, who has made a false statement, and knows it to be false, would escape contradiction and exposure.
This particular question seems to have rarely come up in the American courts, whose decisions are reported. We find, however, that in Yermont the rule corresponds with that adopted by Baron Parke. — Holbrook v. Holbrook, 30 Vt. 433. In Massachusetts and Maine, contradictory statements of a witness are allowed, without any previous interrogation of him about them. In Alabama, he is first examined concerning them — only, however, to prevent surprise, and afford Mm an opportunity for explanation. — 2 Brick. Dig. 548, §§ 117, 118. But, if the witness says he has no recollection of having made such contradictory statements, they may be proved.
For the error of not permitting this to be done, the judgment must be reversed, and the cause remanded. Let the prisoner remain in custody, until discharged by due course of law.