In concurring in what Justice GARDNER has said above, I desire to add the following for the purpose of again calling attention to the importance of amending our statutes as to the trials of homicide cases:
If it be conceded that the proffered evidence which was excluded over defendants' objection was not admissible as tending to show self-defense, or any other defense in justification, it was indubitably relevant as tending to aid the jury in determining the degree, and in fixing the punishment. Suppose these defendants had pleaded guilty, as charged in the indictment, and the jury or court (if such was allowable) was hearing testimony only for the purpose of enabling them to intelligently find the degree of the crime, and to determine the kind and severity *Page 265 of punishment which ought to be inflicted, would they not desire the facts which the excluded evidence tended to show? I do not believe that there is a court or a judge in the world, if it or he had to fix the degree of the crime and the punishment, who would not compel, much less allow, the evidence excluded on this trial. I do not believe that there is a jury in the world that would not desire to hear it before being required to fix the punishment.
I concede that there are decisions of this court which justify the action of the trial court in excluding this evidence, if it did not tend to prove the guilt or innocence of the defendants. As I understand it, Justice GARDNER dissents as to this evidence only on the ground that, in his judgment, it tended and was admissible to show self-defense or justification; but the main ground of my dissent is that it was admissible even if self-defense was not availing.
As I tried to point out in the case of Warren v. State,197 Ala. 340, 72 So. 624, this hard rule of evidence against defendants has resulted from the failure of the courts to take account of the radical statutory changes of our law as to the trial of homicide cases. Before the passage of our statutes on the subject, juries had nothing whatever to do with ascertaining the degree of the crime or fixing the punishment. Then, of course, no evidence which was not proper for these purposes was admissible on the trial; but if the jury returned a verdict of guilty, then the court heard all such evidence as was excluded on this trial, and that in Warren's Case, in order to aid him in intelligently fixing the degree and punishment.
Chief Justice Peck in Fields' Case, 47 Ala. 603,11 Am. Rep. 771, pointed out the change of the statutory law as to the tribunal fixing the punishment — necessitating the change of the rules of evidence in such cases — and this case was noted, cited, and approved by the leading text-book writers on the subject of criminal evidence, and was followed and quoted approvingly by this court down to the case of Bankhead v. State, 124 Ala. 14, 26 So. 979. In Green v. State, 143 Ala. 10,39 So. 362, however, a dictum led this court astray. It was there said to have been overruled in a number of cases then cited. An examination of the cases cited as overruling the Fields' Case, supra, as to the point here in question, will show that the court failed to note the exact question decided in the Fields' Case. I submit the Fields' Case did not decide that the character of deceased was admissible in evidence in all homicide cases. I attempted in Warren's Case, 197 Ala. 340,342, 72 So. 624, to trace the history of these rules of evidence, and it will serve no good purpose to here repeat them.
In my judgment, the failure to observe these rules of evidence declared by this court from the time of Quesenberry's Case, 3 Stew. P. 308, more than three score and ten years ago, and Fields' Case, 47 Ala. 603, 11 Am. Rep. 771, down to Bankhead's Case, 124 Ala. 14, 26 So. 979, is the prime and chief cause of juries so often disregarding instructions of judges in the trial of criminal cases. In these cases they know there are facts which are not allowed to be introduced in evidence, which tend to palliate the crime and mitigate the offense, and they act on it in disregard of the instructions of the court. To restore the common law in this respect or to amend the statutes so as to expressly allow such evidence in homicide cases would tend to prevent any occasion for criticizing juries for enforcing what is popularly called the "unwritten law" of homicide cases.
This case and Warren's Case, in my humble judgment, cry loudly for a change of the statutes on this subject. I cannot believe that the law of this state does or ought to deny these defendants the benefit of self-defense. "Breathes there the man" who would refuse to aid his bereaved sister in the search of her child that had been taken from her by force or stealth, even by its father and her husband, for the purpose of permanently depriving her of it, when it was a mere nursing infant, and by nature needed her custody and attention? "If such there be" could he refuse to defend his sister when assaulted by her father-in-law, who was choking her and attempting to take the child from her arms by force although she had found the child in his house, and was attempting to carry it away without his consent? I do not believe such man can be found. I do not believe he forfeits his right of self-defense by defending his sister under these circumstances.
One of the leading criminal cases in this state, and one which has been cited probably as often as any other, in my judgment states the law correctly on the subject of homicides committed under circumstances like the facts in this case. There the father and mother had quarreled over the custody of infant children, and the deceased took the part of the wife; and a difficulty ensued between him and the father, Oliver, who killed the stranger who interceded in behalf of the wife. In that case the court said, among other things as to the rights and defenses of the respective parties:
"Nor can we think that if the father and mother quarrel, and, being about to separate, they both contend for the possession of their infant children, that a stranger would necessarily be guilty of a felony if he interfered and protected the possession of the mother, or even took the child from the father and gave it to the mother, for he might not be influenced by the felonious intent of detaining the child from the father. Such conduct, however, without regard to the intent, would be a violation of the rights of the father, for every father is entitled to the possession and control of his child; but whether it would be a trespass or a felony would depend on the intent with which the act was done. To *Page 266 constitute this offense the criminal intent and the act must both concur, and this intention is a fact to be inferred from the evidence, and can be ascertained only by the jury." Oliver v. State, 17 Ala. 587.
If a stranger may take the part of the wife in a contention between her and her husband as to their children, surely the brothers of the wife can take her part in a contention between her and her father-in-law as to the custody of the children, without thereby losing all right to self-defense.