
    Lewis v. The State.
    
      Indictment for Murder.
    
    1. Opinion of witness as evidence. — In a trial for homicide, it is competent for the defendant to explain the fact of his flight by proving his personal fear of the father of the deceased, but the testimony of a witness that “the defendant seemed afraid of” the father of the deceased, is not admissible for this purpose, being a mere opinion of the witness, based on the conduct or declaration of the defendant himself, if supported by any fact at all.
    2. Unoommunicated intention. — In a trial for homicide, the defendant should not be permitted to testify as to the unoommunicated intention with which he did the act which caused the death of the deceased,
    3. Manslaughter in the first degree. — If one intentionally does an act calculated to take life and death is produced by it, the homicide is manslaughter in the first degree, though there is no actual intention to take life.
    4. A hilling is not accidental when the act causing death is done intentionally.- — In a trial for homicide, where it is uncontroverted that the defendant intentionally did the act which produced death, it is proper for the court to refuse to charge the jury on the hypothesis that the killing was “accidental.”
    5. Exception to general charge. — In a trial for homicide, if the court in its general charge fails to instruct the jury on the hypothesis that the defendant’s evidence is true, this, in the absence of any request by the defendant for such instruction, is no ground for exception to the general charge given by the court ex mero moto.
    
    6. Court may explain written charges given. — The court may, in oral charges given at the request of one party, state the meaning of written charges already given at the request of the other party.
    7. Abstract, confused, or misleading charges are properly refused.
    Appeal from the City Court of Montgomery.
    Tried before the Hon. T. M. ARRINGTON.
    The appellant, Andrew Lewis, was indicted for the murder of Henry Lovelace “by striking bim witb a brick or a brickbat,” and was convicted of manslaughter in the first degree.
    The evidence tended to show that the defendant, who was in the employ of A. S. Lovelace, the father of the deceased, was riding on one of the streets of Montgomery in a wagon with the deceased and another boy; ‘that the defendant got out of the wagon to speak to some one, gave the lines to the other boy, Houston Johnson, and told him to drive on, and he would catch up with them that when defendant started to catch up with the wagon it was some distance ahead, and he called to Houston Johnson to stop, which he did ; that just as the defendant was nearly to tlie wagon, Henry Lovelace snatched the lines from Houston Johnson, and drove on. The defendant tried to catch theyagon, and called to Henry to stop, and, upon his failing to do so, he picked up a quarter of a brick and threw it at Henry, striking him just above the right ear, and causing his death about a week afterwards. The State proved the flight of the defendant, and his subsequent arrest. The evidence for the defendant tended to show that, while trying to catch the wagon, after he had called to Henry Lovelace to stop, he picked up a piece of brick and pitched it at the wagon; that when the brick-bat struck Henry, the defendant said that he did not intend to hit Henry, and said to him, “Hush, Henry, don’t cry; I did not go to hurt youthat defendant told Henry’s mother, when asked by her what was the matter with the boy, that he had hit him with a piece of brick, but that he did not intend to do so. The evidence further tended to show that the defendant, having been told by the boy’s mother to leave her ] louse, stayed with one Henry Gilmer, near Montgomery, until a few days after the boy’s death; and when he heard that A. S. Lovelace, the boy’s father, was hunting for him, he left, and went to Bullock county; and that when Lovelace came there after him with a Winchester rifle, defendant fled and did not come back for -some time. The defendant asked one of his witnesses, who had testified to Lovelace coming after the defendant, and as to defendant’s flight, “if the defendant seemed afraid of Lovelace.” The solicitor objected to the question, the court sustained the objection, and the defendant excepted. The defendant took the stand as a witness in his own behalf, and testified that he pitched the brick at the wagon; and his counsel asked him the folio wdng question: “What was your intention when you pitched that piece of brick at the wagon?” The solicitor objected to the question, the court sustained the objection, and the defendant excepted.
    
      In tbe course of tbe charge given by tbe court of its own motion, it charged tbe jury : “If tbe act was calculated to take life, tbe killing was manslaughter in tbe first degree.” To this part of tbe court’s general charge tbe defendant excepted. Tbe bill of exceptions then recites: “Tbe defendant asked tbe court to charge tbe jury on tbe hypothesis that tbe killing was accidental. Tbe court said in reply to tbe said request, ‘That there was no evidence of such character.’ To which remark of tbe court tbe defendant then and there excepted.” Tbe bill of exceptions also recites : “When tbe court bad finished charging tbe jury, tbe defendant then and there excepted to tbe general charge, for tbe reason that, while tbe court instructed tbe jury upon tbe hypothesis that tbe testimony of tbe State’s witnesses might be true, tbe court did not instruct tbe jury upon tbe hypothesis that tbe testimony of tbe defendant or tbe defendant’s witnesses might be true.”
    Tbe defendant excepted to tbe refusal of tbe court to give tbe following, among other written charges requested by him : (1.) “Tbe fact that tbe defendant is charged by tbe grand jury with tbe commission of this crime is no evidence of bis guilt; tbe finding of tbe indictment only gives permission to this court to inquire into bis guilt; and, unless tbe evidence given from tbe stand satisfies tbe minds of tbe jury to a moral certainty that tbe defendant committed this crime intending to kill, the jury must acquit him.” (6.) “It is tbe duty of the jury to give tbe defendant tbe benefit of every reasonable doubt which may arise in tbe consideration of tbe evidence in this case; and if, after a fair and full consideration of this evidence, the minds of tbe jury are left in a state of doubt and uncertainty as to whether tbe defendant intended to kill tbe deceased, or whether tbe killing was accidental, then the jury should give tbe defendant tbe benefit of such reasonable doubt, and acquit him.” (22.) “If tbe jury is not satisfied beyond a reasonable doubt that, when tbe defendant threw tbe piece of brick, be threw it with malice, and intended to kill Henry Lovelace, they must acquit him of murder.” (23.) “If tbe jury are not satisfied beyond a reasonable doubt that, when tbe defendant threw the piece of bripk, be intended to kill Henry Lovelace, or that tbe act was one from which death or great bodily barm would ordinarily, or in tbe usual course of events, follow, they must acquit tbe defendant of manslaughter in the first degree.” (26.) “Tbe law in no case requires tbe greatest care that can be used. It only requires a reasonable precaution, such as is usually and ordinarily taken in tlie like cases ; wbicb bas been bj long experience found to answer tbe ends; for such conduct shows that the accused is regardful of social duty, and is free from all manner of guilt.”
    The court gave a number of written charges requested by the defendant; among them, the following: (2.) “Every one charged with the commission of a crime is presumed to be innocent until his guilt is established; and the evidence to induce his conviction should not be a mere preponderance of probabilities, but it should be so convincing as to lead the minds of the jury to the'-conclusion that the defendant cannot be guiltless.” (10.)' “ ‘That, unless the evidence against the prisoner should be such as to exclude, to a moral certainty, every supposition but that of his guilt of the offense imputed to him, they must find him not guilty.” After these charges had been given, the solicitor read from the charges, and requested the -court to instruct the jury as follows: (1.) “ ‘The evidence to induce his conviction should not be a mere preponderance of probabilities, but it should be so convincing as to leM the minds of the jury to the conclusion that the defendant cannot be guiltless.’ — only means that they should be satisfied of his guilt beyond ail reasonable doubt.” (7.) “‘Thaf unless the evidence against the prisoner should be such as to exclude, to a moral certainty, every hypothesis but that of his guilt of the offense imputed to him, they must find~the defendant not guilty’— only means that they must be. satisfied of the defendant’s guilt beyond all reasonable doubt.” The court gave these instructions, at the oral reque'slf of the solicitor; and the defendant separately excepted to the giving of each of the explanatory charges.
    J. T. EllisoN, for appellant.. ■
    ¥m. L. Mabtim, Attorney-General, for the State.
   McCLELLAN, J.

-The Statk proved the flight of the defendant as tending to establish guilt. Defendant sought to rebut the inference afforded by the fact of flight by showing that flight was-* due. to defendant’s fear that Lovelace, the father of' the deceased, would summarily avenge the homicide, ¿ and not a consciousness of guilt. It was of course competent to prove defendant’s personal fear to explain his flight, but this could not be done by the testimony of a witness that, “the defendant seemed afraid of Lovelace,” a mere “opinion of the witness, based either on the conduct or declarations of the defendant himself, or else unsupported by fact at all.” — Poe v. State, 87 Ala. 65; McAdory v. State, 59 Ala. 92; Gassenheimer v. State, 52 Ala. 313.

The proposed testimony of the defendant as to the intention with which he pitched the brick which inflicted the fatal wound was properly excluded. A witness can not testify to the uncommunicated intention with which he did an act.— Wheeless v. Rhodes, 70 Ala. 419 ; Burke v. State, 71 Ala. 377; Whizenant v. State, lb., 383; Stewart v. State, 78 Ala. 456; Fonville v. State, 91 Ala. 39; Baldwin v. Walker, Ib., 428 ; E. T., V. & G. R. R. Co. v. Davis, Ib., 615.

That part of the court’s general charge to which the first exception was reserved is in effect, that if one intentionally does an act which is calculated to take life and death is produced by it, the homicide is manslaughter in the first degree. This is the law. An actual intention to take life is not an essential element in this offense or indeed in murder. The voluntary setting in motion or application of unlawful force, or the doing of an act greatly dangerous to the lives of others, whereby death ensues, will suffice to supply the legal elements of evil intent, however free the action may be from actual purpose to kill. These principles justify the charge given by the court and its refusal to give charges 1 and 22 requested by the defendant. — Harrington v. State, 83 Ala. 9; Williams v. State, 83 Ala. 16; Hornsby v. State, 10 So. Rep. 522; Mitchell v. State, 60 Ala. 29; Washington v. State, 60 Ala. 10; Nutt v. State, 63 Ala. 180; Hampton v. State, 45 Ala. 82; McManus v. State, 36 Ala. 285.

It was not controverted that the defendant intentionally threw, or “pitched,” the brick which produced death, at the deceased. Whether he intended to kill deceased or not, that result is chargeable to his voluntary act; and not to misadventure. There being thus no testimony tending to show that the killing was “accidental,” the court rightfully refused to instruct the jury on that hypothesis.' — Walker v. State, 85 Ala. 7. Any charge in line with defendant’s request in this connection would have been abstract, and, hence, even had such instruction been requested in writing, which itvwas not, should have been refused.- — Ruse v. State, 90 Ala. 624; Railroad Co. v. Watson, 90 Ala. 41.

If it was apprehended that the defendant would be prejudiced by the failure of the presiding judge, to charge the jury on the hypothesis that defendant’s evidence might be true,” at least request should have been made that he so charge them. This omission, very clearly we think, afforded no ground for an exception to tlie court’s general charge as given. "Whether such request “should, if made, have been complied with, we need not decide. Possibly defendant should have asked special written charges covering the point, the court having charged the jury as to their duty in the event they found the fact in line with the tendencies of the State’s evidence.

Charge 6 refused to defendant is manifestly distinguishable from the charge which this court held in Elmore v. State, 92 Ala. 51, should have bepn given. It is easily open to a construction which would subject it to the objections held fatal to a similar charge in' the case of A. G. S. R. R. Co. v. Hill, 93 Ala. 514. Moreoyer this charge is, for reasons stated, in another connection, abstract, in that there is no evidence in that case which tends to show that the killing was accidental, in a lega] sense, and it is misleading, in that the jury would naturally have been induced by it to the conclusion that the defendant could not be guilty unless he had the purpose to kill the deceased. It may be that “the law in no case requires the greatest care that can be used,” as stated in charge 26, requested by the defendant, but in all cases, we apprehend it does require greater care than any phase of the evidence found in this record shows defendant to have exercised, much greater care than can possibly be implied from any method of -heaving a brickbat at and against a small boy; and to have given this charge could have served no other end than to confuse and mislead the jury. * •

It was entirely competent and proper for the trial court to explain not to qualify, limit or modify, the written charges given for defendant in the ma*aner shown by the record. A. G. S. R. R. Co. v. Moody, 92 Ala. 279; Lowe v. State, 88 Ala. 9; Barnard v. State, Ib., Ill; McKleroy v. State, 77 Ala. 95.

Charge 23 requested for the defendant is a correct exposition of the law as expounded in Williams v. State, 83 Ala. 10, and should have been given.*

For the error committed in its refusal the judgment must be reversed ; and the cause will be remanded.

Reversed and remanded.  