CASES

IN THE

SUPREME COURT

OF

ALABAMA.

WALKER V. STATE.

[85 ALABAMA, 7.]

CRIMINAL LAW-PROOF OF MOTIVE. — MOTIVE IS INFERENTIAL FACT, and may be inferred from the attendant and surrounding circumstances, in conjunction with all previous occurrences having reference to and connected with the commission of the offense.

ON TRIAL FOR ASSAULT WITH INTENT TO MURDER, IT HAVING BEEN SHOWN that the defendant and the woman injured had lived in adultery for some time, and that she left him, and the evidence tended to show that he shot her because of her persistent refusal to return and live with him, it is competent for the prosecution to prove the relation which had existed between them, the defendant's continuous efforts to induce her to return, her repeated refusals, his following her from place to place, his threats on each refusal, and his demonstrations of violence on such occasions, as bearing on the question of intent with which the assault was made.

SUBSEQUENT THREATS.-ON TRIAL FOR ASSAULT WITH INTENT TO MURDER, EVIDENCE that Defendant, after the indictment had been found, and a few weeks before the trial, as he passed the injured woman in the court-house, said to her, "I'll get you yet," is admissible as manifesting his state of feeling towards her, not only at the time of the menace, but also at the time of the assault, and that he still cherished the malicious intent.

REMARKS OF JUDGE ON EVIDENCE, WHEN NOT REVERSIBLE ERROR. — On the trial of a prosecution for an assault with intent to murder, the court having omitted, in the general charge, to instruct the jury specifically as to the offense of assault and battery, the defendant's counsel called attention to the omission, and the presiding judge replied: "I know of no evidence in the case which would warrant a verdict for assault and battery." Such remark, in the hearing of the jury, is not reversible error, where the record discloses no evidence on which a verdict for an assault and battery only could have been reasonably found.

VOLUNTARY DRUNKENNESS IS NO EXCUSE FOR CRIME, and unless the de. fendant, indicted for an assault with intent to murder, was, at the time of the shooting, so drunk as to be incapable of forming an intent to take life, his being drunk can avail him nothing.

THE defendant, Walker, was indicted for an assault with intent to murder one Daisy Harris, a mulatto woman, and, upon trial and conviction, was sentenced to the penitentiary for five years. In addition to the facts set out in the opinion, Daisy Harris testified that once, in Birmingham, in the court-house, before the shooting for which the defendant was on trial, he said to her: "I will kill you, even if you were in the arms of the judge"; also, that afterwards, in the streets of Birmingham, the defendant threatened to kill her, drew his pistol on her, and ordered her to stop, but did not attempt to carry out his threats; also, that after the finding of the indictment against the defendant, and about two weeks before the trial, in the court-house in Montgomery, as the defendant passed her he said, "I'll get you yet." To each part of this evidence the defendant objected, and reserved exceptions to the overruling of his objections. There was evidence tending to show that the defendant was drunk on the morning of the shooting. The court gave the following charges to the jury, to each of which the defendant excepted: 1. "In determining whether or not the defendant had the intent to take the life of Daisy Harris, the jury may consider the facts, if they be facts, that he drew a pistol on her in Birmingham prior to the shooting here charged, and ordered her to stop; that afterwards, but before the shooting, he again threatened to take her life; and that on the morning of the shooting, he went to the office of Rice and Wiley, where she was, and there shot her with a deadly weapon,-in connection with all the other evidence in the case; and if they believe from the whole evidence, beyond a reasonable doubt, that the defendant had, at the time of the shooting, the intent to take the life of Daisy Harris, and that he shot with malice, and not in self-defense, and that this occurred last November, in Montgomery County, then they must convict the defendant as charged": 2. "Voluntary drunkenness is no excuse for crime; and unless the defendant was, at the time of the shooting, so drunk as to be incapable of forming an intent to take life, his being drunk cannot avail him anything "; 3. "The jury are authorized to presume malice from the use of a deadly weapon, unless the facts which establish the shooting rebut the presumption of malice; and if,

from the use of a deadly weapon, and the manner of its use, and from the threats made, if any were made, and the other evidence in the case, the jury believe, beyond a reasonable doubt, that the defendant shot Daisy Harris with malice, in November last, in this county, and shot her with the intent to take her life, and not in self-defense, then the defendant would be guilty as charged." The defendant also excepted to the refusal of the judge to charge as follows: "Unless the jury believe from the evidence, beyond all reasonable doubt, that the defendant shot Daisy Harris, not in the heat of passion, they cannot convict him of an assault with intent to murder."

Thomas N. McClellan, attorney-general, for the state.

CLOPTON, J. All minor or evidentiary circumstances which tend to shed light on the intent of the defendant are admissible in evidence against him, though they may have transpired previous to the commission of the offense. Motive is an inferential fact, and may be inferred, not merely from the attendant and surrounding circumstances, but, in conjunction with these, all previous occurrences having reference to and connected with the commission of the offense. It having been shown that the defendant and the woman injured had lived in adultery for some time, and that she left him in May, 1887, and there being evidence tending to show that he shot her because of her persistent refusal to return and live with him, the relation which had existed, and the defendant's repeated and continuous efforts, growing out of such relation, to induce her to return, her repeated refusals, his following her from place to place, his threats in consequence of her continued refusal, and demonstrations of violence on such occasions, are each and all competent evidence to go to the jury, in connection with the immediate circumstances of the injury, from which may be inferred the intent with which the assault was made.

If it be said that the weight and force of some of the transactions and declarations should be regarded as weakened or lessened by the lapse of time, such probable effect is more than counteracted by the constant and frequent repetitions, continuing up to or about the time of the injury. But if entitled to little weight, they nevertheless cannot be considered incompetent or irrelevant evidence: Johnson v. State, 17 Ala.. 618; Hudson v. State, 61 Id. 333; Evans v. State, 62 Id. 6.

The menace made by defendant in the court-house, after the indictment was found, and about two weeks before the trial, was not merely a threat having reference to the future exclusively; it also referred to a past act, and included an implied admission, in the form of a threat, of the previous attempt to kill her, and though having failed, he would yet accomplish his intention. It manifested his state of feeling towards the person whom he had seriously wounded, not only at the time of the menace, but also at the time of the assault, and that he still cherished the malicious intent. The evidence comes within the spirit and reason of the rule laid down in Henderson v. State, 70 Ala. 29; 45 Am. Rep. 72; and McManus v. State, 36 Ala. 285.

The court having omitted in the general charge to instruct the jury specifically as to the offense of assault and battery, counsel called attention to the omission. In response, the presiding judge remarked: "I know of no evidence in this case which would warrant a verdict for assault and battery." Counsel excepted to the remark of the judge, but did not state any evidence on which to base such charge, and did not request any special charge on the question. It may be conceded that, had there been any evidence on which a verdict for the minor offense could have been reasonably found, such remark in the hearing of the jury would work a reversal of the judgment. But on examination, the record, which purports to set out all the evidence, does not disclose any, unless it be the proof that the defendant was drunk a short time before the difficulty. This testimony falls far short of showing that he was so intoxicated as to incapacitate him to form the design to kill, or the intent to murder: Morrison v. State, 84 Ala. 405.

The charges given at the instance of the prosecution state the law in accordance with our uniform rulings: Baker v. State, 81 Ala. 38; Watson v. State, 82 Id. 10; Storey v. State, 71 Id. 329; De Arman v. State, 71 Id. 351.

We discover no error in the record.

Affirmed.

THREATS MADE BY PRISONER, ADMISSIBILITY OF IN EVIDENCE: Hopkins ▼. Commonwealth, 50 Pa. St. 9; 88 Am. Dec. 518, and note 524.

ON THE TRIAL OF ONE OF A NUMBER OF CONSPIRATORS for murder committed in the execution of the conspiracy, it is proper to admit evidence of threats made by the conspirators to kill another person who was among those against whom the combination was formed, where such threats were made