Pelham v. State

• Decision Date: 14 January 1930
• Docket Number: 1 Div. 881.
• Citation: 23 Ala.App. 359,125 So. 688
• Parties: PELHAM v. STATE.
• Court: Alabama Court of Appeals

125 So. 688

23 Ala.App. 359

PELHAM v. STATE.

1 Div. 881.

Court of Appeals of Alabama

January 14, 1930

Appeal from Circuit Court, Monroe County; T. J. Bedsole, Judge.

William H. Pelham was convicted of manslaughter in the first degree and he appeals. Reversed and remanded.

See also, 22 Ala. App. 529, 117 So. 497.

C. L Hybart, of Monroeville, for appellant.

Charlie C. McCall, Atty., Gen., for the State.

BRICKEN, P.J.

From a judgment of conviction for manslaughter in the first degree this appeal was taken.

This court has given attentive and careful consideration to the matters contained in this record. We find no evidence showing or tending to show that this appellant contributed in any manner to the bringing on of the difficulty with Oliver which resulted in the death of Oliver, the deceased named in the indictment. To the contrary, we think it clearly appears that Oliver and one Johnson, and possibly others were the aggressors throughout, and that the fatal difficulty resulted solely from the activities of these parties. That Oliver met his death as a result of knife wounds inflicted upon him by appellant is without dispute, but under the law this fact is by no means conclusive of the guilt of the accused, for every killing of a human being by another is not necessarily unlawful. The law recognizes the right of a person to take the life of another in order to save his own life, provided none of its provisions have been transgressed, and that the act is done in self-defense. Barnett v. State, 21 Ala. App. 646, 111 So. 318, 319.

In the Barnett Case this court said: "While the divine law says, 'Thou shalt love thy neighbor as thyself' [it also says, 'Thou shalt not kill'], neither the divine law nor the law of man requires one to love his neighbor better than himself. This, coupled with the natural instinct, that of self-preservation, the first law of nature," etc. In Pilcher v. State, 16 Ala. App. 237, 77 So. 75, 76, this court said: "The word 'kill' does not necessarily mean any more than to deprive of life. A man may kill another by accident, or in self-defense, and in many other ways, without the imputation of crime." In order to bring the acts of the accused, in the instant case, within the inhibition of the law, the state was under the burden of proving beyond a reasonable doubt, and to a moral certainty, that the killing complained of was unlawful and intentional. As stated by the trial court in the oral charge, "manslaughter in the first degree is the unlawful, voluntary, or willful killing of a human being, but without malice." A recital of the evidence here would serve no good purpose. Under the evidence, the affirmative charge was not in point, and was therefore properly refused.

The statement attributed to the defendant, by the testimony of state witness Jasperson, to wit, "I'll cut the son of a bitch," if made, was not of the res gestæ. Cox v. State, 19 Ala. App. 205, 208, 96 So. 83, and cases cited. Nor was such statement in any sense a confession, for, if made, it related to the future, and not to past transactions. Cox v. State, supra. The court erred in overruling defendant's timely objection to the questions, and in permitting the witness to thus testify. The matter was prejudicial to the substantial rights of the accused, and it appears from the record that later in the trial the court took this view of the matter, and of its own accord and without further motion reversed the ruling formerly made and excluded the testimony from the jury. In this connection appellant, we think, properly insists that the latter ruling of the court failed to repair the damage that had already been done, and that the hurtful effect of the testimony, which had remained with the jury for some time before it was excluded, was not eradicated. In this connection appellant insists: "This was in no wise a part of the res gestæ, nor in the nature of a confession, but was highly prejudicial to the appellant. This testimony was permitted to linger before the jury and soak in their minds there quite awhile. *** If this evidence was incompetent, as we contend it is, and as the court also finally held, the permitting of the testimony to linger in the minds of the jury for the time the court permitted, is bound to have had its effect in prejudicing the minds of the jury against the appellant," etc.

In Childs v. State, 55 Ala. 30, in disapproval of the practice of first admitting and afterwards excluding illegal and incompetent evidence, the court said: "It may be difficult, sometimes, for jurors to prevent evidence that has been improperly before them from having some influence in shaping the verdict they must render." "The illegal admission is apparently susceptible of subtle and sinister effect upon the discharge by the jury of the grave and supremely important duty committed to the jury." Watson v. Adams, 187 Ala. 490, 499, 65 So. 528, 530 (Ann. Cas. 1916E, 565).

In Jordan v. State, 79 Ala. 12, it was also pertinently said of the subsequent exclusion of improperly received matter: "But, in such case, the court should endeavor as far as practicable, to remove any unfavorable and...