Smith v. State

• Decision Date: 21 February 1889
• Citation: 5 So. 478,86 Ala. 28
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

5 So. 478

86 Ala. 28

SMITH v. STATE.

Supreme Court of Alabama

February 21, 1889

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

Giles Smith was indicted for an assault with intent to murder, was convicted, and sentenced to the penitentiary. On the trial he reserved exceptions to several charges given, and to the refusal of several charges asked by him. One of the charges asked and refused was in the following words: "To reduce the offense to an assault and battery, it is not necessary that the defendant, at the time he struck the blow, should have been unconscious of what he was doing; but, if there was a sufficient provocation to excite sudden passion, and defendant acted under such passion, then the presumption is that passion disturbed the sway of reason, and made him regardless of his act, and, if the jury believe this from the evidence, they may find him guilty of an assault and battery merely." For opinion in former appeal, see 3 South. Rep 551.

Parks & Son, for appellant.

T N. McClellan, Atty. Gen., for the State.

STONE C.J.

The conflicting testimony in this record places the case in very different categories. That of the prosecutor tends to show he was very causelessly assaulted. That of the accused, in addition to another grave provocation, tended to show that he acted only in prevention or defense of a very dangerous assault about to be committed on him by the defendant. It was for the jury to determine what were the facts.

This is the second appeal in this cause. 83 Ala. 26, 3 South. Rep 551. The testimony on the former trial related to the same transaction, and largely to the same provocation, as that set forth in this record. Commenting on a charge which had been given in that case, this court said: "A killing in sudden passion, excited by sufficient provocation, without malice, is manslaughter, not because the law supposes that this passion made him [the slayer] unconscious of what he was about to do, and stripped the act of killing of an intent to commit it, but because it presumes that passion disturbed the sway of reason, and made him regardless of her admonitions." The meaning of this language is that in the case hypothesized, and in the absence of facts or circumstances tending to prove formed design, sudden passion, engendered by sufficient provocation, raises the presumption that the homicide was the result of the sudden passion, and not of malice or previous intent. This principle may result, at least in part, from another well-recognized principle in criminal administration, that every tangible, reasonable doubt must be resolved in favor of the accused. This presumption, however, may be overcome, and is overcome whenever the facts...