Lang v. State

• Decision Date: 14 May 1888
• Parties: LANG v. STATE.
• Court: Alabama Supreme Court

4 So. 193

84 Ala. 1

LANG v. STATE.

Supreme Court of Alabama

May 14, 1888

Appeal from city court of Mobile; O. J. SEMMES, Judge.

In May or June, 1887, there was at Mount Vernon a general fight, in which the deceased, Willie Boyd, was struck in the back of the head with a base-ball bat or stick, and knocked down. From the effects of this blow, which fractured the skull Boyd subsequently died. The deceased, Willie Boyd, was actively engaged in the fight at the time he was struck on the head with the bat or stick, which proved to be the fatal blow. Just before the blow was struck, the deceased had knocked down two or three men with a base-ball bat. He had knocked down two men, and they were lying senseless on the ground. The deceased was standing leaning over the last man he had knocked down, when some one came up out of the crowd and struck the deceased over the back of the head with a base-ball bat or stick. The man who struck the fatal blow struck a left-handed blow, holding the bat or stick with both hands. The man who struck the fatal blow dropped the bat or stick, and ran north along the railroad track. There was evidence tending to show that the defendant was a right-handed man. There was also evidence tending to show that the deceased had struck the appellant over the head with a stick, up in front of a store where the fight commenced and in the early part of the same fight in which said Boyd was killed. The question of fact for the jury was as to the identity of the defendant as the man who struck the fatal blow. The state introduced evidence of a confession by the defendant that he struck the blow, assigning as a reason that he had been struck on the head with a skillet by the deceased some time before, which had left a scar on his forehead. Defendant offered to prove by one Patton that he (Patton) was the party who had struck Lang with the skillet, but the court refused to allow the testimony. The court refused to allow the defendant to introduce evidence of the deceased's character for turbulence and violence. One of the charges given by the court, and excepted to by the defendant, is set out in the opinion, and the other is as follows: "To prove beyond a reasonable doubt that the defendant is guilty does not mean that the state must make the proof by an eye-witness, or to a positive, absolute, mathematical certainty. This latter measure of proof is not required in any case. If, from all the evidence, the jury believe that it is possible, or that it may be, or perhaps, the defendant is not guilty, this degree of uncertainty does not amount to a reasonable doubt, and does not entitle the defendant to an acquittal. All that is required is that the jury should, from all the evidence, believe beyond a reasonable doubt that the defendant is guilty; and, if they so believe, and it was in this county, and before the finding of this indictment, they must find the defendant guilty, although they may also believe, from the evidence, that it may be that he is not guilty, or that it is possible that he is not guilty." Lang was found guilty of murder in the second degree, and sentenced to 10 years' imprisonment in the penitentiary. From the judgment he brings this appeal.

McCarron & Lewis, for appellant.

Thos. N. McClellan, Atty. Gen., for appellee.

CLOPTON J.

As a general rule, in cases of homicide, evidence of the bad character of the deceased, for turbulence and violence is not admissible, unless it tends to qualify or explain the conduct of the deceased, or to illustrate the motive or intent of the accused in committing the homicide, when it may be said to constitute a part of the res gest . The character of the deceased, however rash and blood-thirsty, furnishes per se no excuse for taking his life. To render such evidence competent and relevant, the conduct of the deceased must be of such nature that its tendency, under the circumstances and as illustrated by his character, is calculated to create a reasonable apprehension of great bodily harm. The purpose of such evidence is to show the honesty of the accused's belief of...