Floyd v. State

CLOPTON, J.

— Defendant’s counsel claimed the right to ask a witness, with a view to his contradiction, what he testified as to certain matters on the preliminary trial before the committing magisti’ate ; and after the witness answered, to read his previous testimony as to such matters to the jury. The evidence of the witness given before the magistrate had been reduced to writing, and was in the possession of the examining counsel. The court ruled, that the proper mode of examination was to read to the witness his testimony on the preliminary trial, and ask him if he did so testify. The general rule is well settled, that a witness can not be impeached by proof of contradictory statements made under oath or otherwise, without first laying a proper *22 predicate by calling his attention to the time, place, and person, and stating to him the substance of what it is proposed to show he had said. The rule applies to written statements made by the witness, the. purpose being to afford full opportunity to explain the apparent or alleged inconsistency. When it is sought to impeach the credibility of a witness by proving that he has on other occasions made contradictory oral statements, he may be asked on cross-examination if he did not make such representations; but, when the statement is in writing, made by the witness, or subscribed by him, the writing, being the best evidence, should be produced, and an opportunity allowed the witness to inspect and examine. The written testimony of a witness before the committing magistrate can not be read to the jury on the final trial, to contradict him, unless it is produced and shown, or read to the witness, or its absence accounted for, and his attention called to the inconsistent statements, to enable him to show, by comparison of the whole of his previous evidence, that the apparent variance is not real, but modified or explained by other parts of the writing, or to explain otherwise the circumstances, nature, and meaning of what he testified. — Powell v. State, 19 Ala. 577; Wills v. State, 74 Ala. 21; Phoenix Ins. Co. v. Moog, 78 Ala. 310.

2. It appears from the bill of exceptions that there was evidence of the corpus delictij but it does not appear whether or not its introduction preceded the admission of the con • fessions. If necessary to sustain the ruling of the court, we would presume, in this state of the record, that some preliminary proof was made before the confessions were offered. But the court overruled the objection to the admissibility of the confessions, on the ground, that “ there was independent proof of the corpus delictithe prima fa/ie sufficiency of which is for the' determination of the presiding judge. Moreover, if it be conceded, that the confessions were inadmissible when offered, they were rendered admissible by subsequently showing the corpus delicti, and the error was thereby cured .— Griffin v. State, 76 Ala. 29.

3. The court admitted, against the objection of defendant, the testimony of two deceased witnesses, who were examined on the preliminary trial before the committing magistrate. The rule is well established, that such evidence is admissible in a criminal case, on the final trial, when the witness was sworn by competent authority, and the accused had the right to cross-examine.— Davis v. State, 17 Ala. 354; Tharp v. State, 15 Ala. 749; Harris v. State, 73 Ala. 495.

4. The specified ground of objection is, that the defend *23 ant bad no opportunity of cross-examination. This ground is disproved by the record, which expressly states, that the accused was present at the preliminary trial, was represented by counsel, and cross-examined the witness. Had the effort to exclude stopped here, the defendant, under our rulings, would be regarded as having waived all grounds of objection, other than the particular grounds specified.— Jacques v. Horton, 76 Ala. 238. After this objection was overruled, and the testimony of the deceased witness was read to the jury, the defendant made a general motion to exclude the evidence of one ol them, without stating any particular grounds of objection. The majority of the court-are of opinion, that, under the circumstances, it was incumbent on the defendant to have stated the grounds of the motion, if it was intended to base it on any other than the particular ground specified when objection was first made ; and having failed to do so, that the motion to exclude should be referred to such previously specified ground, and all others regarded as waived. Though I doubt the propriety of extending the implied waiver to the subsequent motion, the court not having required specific objections to be stated, it being a question of practice, I acquiesce in the opinion of- the majority. This renders it unnecessary to consider the legality of the testimony in other respects.

5-6. The evidence of the pendency of the indictment charging defendant with a felony, the forfeiture of his bail-bond, the issue of a capias, and the reward offered by his sureties for his arrest, in connection with a knowledge of these facts on the part of deceased, and defendant’s acquaintance with him, become material and relevant, as shedding light on the animus of defendant, and as bearing on the issue of self-defense. The deceased was a policeman of the city of Montgomery, and was on duty. As such, he had statutory authority, and it was his duty, to arrest defendant, who was charged with a felony, on any day, and at anytime, though he may not have had a warrant. — Cride of 1876, §§ 4653, 4664. To submit to an arrest, under such circumstances, was the correlative duty of defendant. If he fled to avoid arrest, the deceased had a right to pursue him, and to use the force necessary to compel submission. Resistance, in such case, is criminal; and innocence of the charge affords no excuse. If the defendant attempted to escape by flight, and shot the deceased while pursuing him, knowing that he was an officer, in order to prevent his arrest, the killing is without excuse or palliation. Under such circumstances, the defendant is not free from fault in bringing the *24 necessity on himself, which we have uniformly held is an essential element of the doctrine of self-defense.

7. When considered in reference to the tendencies of the evidence, all the charges asserting the right of self-defense are fatally defective, and were properly refused. They assume that defendant had the right to flee, and that deceased had no authority to pursue, on any hypothesis of the facts which the evidence tends to support. They pretermit inquiry, whether the defendant was at fault in not submitting to arrest, and by flight producing the necessity of pursuit, and apparently threatening attitude of the pursuing officer ; and they withdraw from consideration the evidence tending to show that the purpose of deceased was to arrest, and-that the defendant ought to have so understood. And on the hypothesis of one of the charges, that the deceased, having a warrant for the arrest of a different person charged with a misdemeanor, was pursuing' the defendant with a club and deadly weapon under a mistake as to the man, and conceding that it would have been murder if the deceased had slain the defendant thus fleeing, this would not furnish the legal test of the right of self-defense, though the defendant deemed the necessity sufficient to slay the deceased to save himself from great bodily harm. Whatever the defendant may have deemed, the plea of self-defense is not sustained, unless the facts established show a reasonable ground to believe that there was a present, real or apparent necessity.— Dupree v. State, 33 Ala. 380.

8. Charge number 8, requested by defendant, is both abstract and argumentative. There is no evidence, even remotely, tending to show that the killing was by mistake, while seeking to prevent a reasonably suspected felony.

9. If, as hypothetically stated in the charge given at the request of the prosecution, the defendant was under indictment for a felony, and a capias had been issued for his arrest, of which facts deceased and his co-policeman were informed, and, on being met and accosted by the officers, the defendant gave an assumed name, and, on being pursued, shot the deceased to prevent arrest, which shot caused his death, the defendant is guilty of murder; and he is guilty of murder in the first degree, if he shot in pursuance of a formed design to take life. While the charge, abstractly asserting a correct legal proposition, will not work a reversal, it may be remarked that the phraseology, in the light of the evidence, is subject to criticism, as being calculated to mislead, which tendency should be avoided. A formed design may be general, as carrying a deadly weapon with the intention to use it on a difficulty arising with any *25 person, irrespective of a necessity, real or apparent; or specia], directed against a particular individual. It implies some preparation to execute the design. — Mitchell v. State, 60 Ala. 26. Had there been evidence that the defendant procured or carried the pistol with the purpose to use it if any person undertook to arrest him, tbe charge would Have been literally and strictly accurate; but, in the absence of such evidence, it is safer and better to employ the statutory words, defining the characteristics of murder in the first degree — “willful, deliberate, malicious, and premeditated,” — the duration, whether long or brief, of deliberation or premeditation, being immaterial.

There is no error in the rulings of the court not specially noticed.

Affirmed.