Holley v. State

BRIOKELL, O. J.

1. The objection taken to the indictment can not be sustained. An indictment receives its legal efficacy from the finding and return of the grand jury; and the legal evidence of its verity is the return “ a true bill,” apparent upon some part of it, bearing the signature of the foreman. The signature of the solicitor, with a designation of the circuit in which he is the law-officer of the State, is proper, but it is not essential to its authentication or sufficiency.—Ward v. State, 22 Ala. 16 ; Harrall v. State, 26 Ala. 52. The present indictment bears the signature of the solicitor pro tempore appointed by the court, in the absence of the solicitor of the circuit, for the particular terra. As the appointment was temporary, limited to the particular term, his relation to the court is precisely expressed by the designation appended to his signature — solicitor pro tern. Any other designation would not have been true.

2. There was no impropriety in the production and exhibition to the jury of the vest of the deceased, worn at the time of the killing, and perforated by the shot. — Bnrrill on Cir. Ev. 437.

3. Reading to the jury as instructions extracts from reported judicial decisions, or from text books, not accompanied with instructions adapting them to the particular case, it may be, is reprehensible, because of its tendency to confuse and embarrass, rather than to enlighten them. The extracts from the decisions of this court, which were read by the presiding judge in the course of his general charge, embody only settled principles of the law of homicide, which it is the duty of the court in some appropriate form to state to the jury in all cases similar in facts to the present case. These extracts were not submitted as mere abstract rules or principles of law; for it is apparent they were accompanied with instructions designed to aid the jury in their application. Of these instructions there is no complaint; and there is no room for any other presumption than that they were appropriate and just.

4. The first instruction requested by the defendant was properly refused ; it is so framed and expressed that its immediate tendency was to confuse, if not to mislead the jury. The material inquiry was, whether the homicide was committed willfully, deliberately, maliciously, and with premeditation. It may be said, there could not have been a concurrence of these elements, unless the heart of the defendant was depraved — • unless, in the language of the instruction, he had murder in his heart. That depends upon the construction which the instruction may receive from the jury ; and if it be the true and only construction of which it is justly susceptible, it is obvious the mere statement of the abstract proposition would have been confusing and embarrassing, unless followed by an explanatory instruction, directing the attention of the jury to the necessary ingredients of murder in the first degree. Instructions requested, having a tendency to confuse or mislead, or which require explanation or qualification, are properly refused. — 1 Brick. Dig. 339, §§ 600-61.

5. It is not clear or apparent that the evidence authorized instructions touching the law of justifiable homicide. The error is, perhaps, too common, that such instructions are appropriate whenever the killing occurred on a sudden quarrel, or in r a sudden affray. But to authorize them, there must be evidence tending to show that there was in fact, or the circumstances generated a reasonable belief of, the existence of a present, imperious necessity, not resulting from the wrongful act of the defendant, for him to take the life of the deceased, to avoid the loss of his own life, or to avoid grievous bodily harm. But in this case, that consideration may be waived with the remark, that it is of the highest importance, in all cases, civil or criminal, that instructions to the jury should have their origin in a state of facts of which there is evidence, or which there is evidence tending to prove ; otherwise, they are abstract. The first of these instructions affirms that an honest belief of a necessity to take life will justify a homicide. It is not an honest, but a reasonable belief, that justifies. An honest may not be a reasonable belief; it may be the offspring of fear, ala 'in or cowardice, or it may be the result of carelessness, and irrational. A reasonable belief, generated by the attendant circumstances — circumstances fairly creating it— honestly entertained, will justify a homicide; but not an irrational belief, however honest it may be.—Oliver v. State, 17 Ala. 587; Harrison v. State, 24 Ala. 67. The second instruction is equally, if not more objectionable. It is enough to say of it, that if the evidence has any tendency to show an intent on the part of the deceased, or an attempt by violence to take the gun from the defendant, if the intent and attempt had been consummated, robbery could not possibly have been imputed to the deceased. A felonious intent, the intent to steal, is as essential to the commission of robbery, as it is to the commission of larceny. The only intent imputable to the deceased, if the gun had been taken violently from the hands of the defendant, would have been an intent to compel the defendant to pay a debt due to the brother of the deceased; this was not a felonious intention, though it would not excuse or mitigate the trespass committed in the taking.—2 Bish. Cr. Law, §8 849, 1162a.

6. Murder in the first degree, as it is described and defined by the statute, is of four kinds or classes, which were carefully enumerated and distinguished in Mitchell v. State, 60 Ala. 26; and it is not now necessary to repeat the classification and distinction. This homicide, if it be murder in the first degree, falls within that species described in the statute, to distinguish it from all other species, as “ any other willful, deliberate, malicious, premeditated killing.” The elements or qualities of the offense being declared so particularly, it is essential that each and all should concur and co-exist; the absence of either, if it does not relieve the act of all criminality, at least reduces it to some other degree of criminal homicide. Malicious, as the term is used in the statute, is construed as signifying a killing perpetrated with fixed hate, or done with wicked intentions or motives, not the result of sudden passion.—Mitchell v. State, supra. The fixed hate, or the evil intent or purpose may be instantaneous- — there may not have been any previous manifestation of it; hence, we find it constantly laid down in the books, in reference to malice as the element of murder at common law, and as the element of murder in the first degree under statutes dividing felonious homicide into degrees, that it is enough if it exists at the instant of the killing, although it may be at a period of time inappreciably distant. — Whart. Horn. §§ 32-33. The obvious error of the instruction requested by the appellant, which, it is supposed, it was intended should direct the attention oi the jury to an inquiry into the presence or absence of malice, is, that it attaches an undue importance to the want of previous malice on the part of the defendant towards the deceased, and hence, was calculated to mislead, uuless followed by explanatory instructions. A court may properly refus.e an imperfect instruction — an instruction which needs modification, qualification or explanation. The instruction is also wanting in precision and definiteness ; it it difficult to discover from it the precise point which it was intended to raise. It has long been the practice of this court on error not to revise the refusal of instructions which are wanting in certainty. Such instructions are calculated to mislead the primary court and to confuse the jury.

7.' A motion in arrest of judgment must be founded on matter apparent on the face of the record. Extraneous matter may be' the subject of a motion for a new trial, but is not available on motion to arrest the judgment.—Blount v. State, 49 Ala. 383. The omission of the presiding judge to indorse “given” upon the instructions requested by the defendant, and given to the jury, was not an error of which advantage could be taken on a motion in arrest of judgment. It was matter of exception at the time it occurred, but none was taken; and the failure to take the exception was a waiver of the error.

We have given the record a careful examination and patient consideration, not unwilling to find error which would justify a reversal of the judgment, and a grant of another trial to the defendant. We have not found it; and our duty is an affirmance of the judgment. As the day for the execution of the defendant has passed, another day will be appointed by the judgment of this court.