
    Handley v. The State.
    
      Indictment for Murder.
    
    1. Humidde; Killing to prevent escape of person charged with misdemeanor. — The fact that the defendant in an indictment for murder, while assisting an officer to arrest the deceased under a warrant charging him with misdemeanor, shot the deceased for the purpose of preventing his escape, constitutes no excuse, justification, or palliation for the taking of life; and does not reduce the offense to manslaughter.
    2. Charges misstating the evidence.- — -On a trial for homicide, where there is evidence tliafi shortly before the killing, defendant said that he had killed or shot five men while guarding convicts, and that he would have shot deceased the night before if deceased had put his head outside the door, charges asserting that there is no evidence that defendant “ever killed any other person,” “ever shed any other man’s blood,” or “liked to shed man’s blood,” are properly refused, said declarations by the defendant having been admitted in evidence without objection.
    . Appeal from tbe Circuit Court of Sbelby.
    Tried before tbe Hon. LeEoy F. Box.
    The appellant, James Handley, was convicted of murder in tbe first degree, and appeals.
    On tbe trial, as shown by tbe bill of exceptions, tbe State introduced, evidence, which was not controverted, that tbe defendant, in tbe latter part of January, 1889, in Sbelby county, shot Joseph Bowman with' a pistol,’ from which wound be died in a few minutes thereafter. Tbe State also introduced evidence tending to show that, when tbe defendant came to where tbe deceased was sitting or leaning against a stump, be leveled bis pistol at tbe deceased, saying, at tbe same time, “Surrender, and throw up your bandsto which tbe deceased replied, “I am not going to clo itand, getting off tbe stump, started to run, when tbe defendant sbot him. Tbe defendant’s evidence tended to sbow tbat be went with a deputy sheriff to arrest tbe deceased under a warrant charging bim with beating bis wife, and tbat, upon bis coming to where tbe deceased was, • tbe deceased got up as soon as be saw defendant, and saying, “There is one of tbe damned rascals who want to arrest me,” came directly towards defendant, wlio told bim to stop, but, upon deceased continuing to advance, and attempting to draw bis knife, defendant fixed and sbot bim.
    Upon tbe introduction of all tbe evidence, tbe defendant requested tbe court to give, among others, tbe following-written charges, and separately excepted to tbe court’s refusal to give each of them as asked: (7.) .“If tbe defendant was requested to aid 'the officers in executing tbe warrant of arrest, and was ■ attempting to do so, and tbe deceased fled or started to run or escape from arrest, and tbe defendant shot tbe deceased to prevent bis escape, tbe then defendant would be guilty of murder or manslaughter, according to tbe peculiar circumstances of tbe case; ■ but it is not murder • unless tbe killing was done in pursuance of a formed design to take tbe life of deceased.” (8.) “If the defendant was requested or told by tbe deputy sheriff to aid or assist or help in arresting tbe deceased, and if be, in pursuance of such request, attempted to arrest tbe deceased, who thereupon fled, and tbe defendant sbot bim to prevent bis escape, then you may look to this fact, under the law, to reduce the offense to manslaughter; and, unless tbe defendant sbot in pursuance of a formed design to take tbe life of the deceased, be cannot be convicted of murder.” (9.) “There is no evidence before tbe jury tending- to sbow that tbe defendant ever killed any other person, or five other persons, and tbe jury must not consider any statement to tbat effect, made by the solicitor in argument.” (10.) “There is no evidence in this case tbat the defendant ever shed any other man’s blood, either negro or white; and tbe jury must disregard all statements on tbat subject, made by tbe solicitor in argument.” (11.) “There is no evidence tbat tbe defendant liked to shed man’s blood.”
    S. ~W. JOHN, and A. P. LoNGSHOBE, for appellant, cited 2 Bishop on Criminal Law, §§ 577,578; 1 Bussell on Crimes, 544, 666, 667.
    "Wm. L. MabtiN, Attorney-General, for tbe State.
   MoCLELLAN, J.

On tbe facts hypothesized in charges 7 and 8, refused to the defendant, he was clearly guilty of murder. An officer charged with the duty of arresting a misdemeanant has no more authority to shoot him down to prevent an escape, than he would have the right to kill any indifferent person who was casually ■ walking or running away from the place where the officer happened to be •; and of course a private person, who was lending aid in effecting the arrest at the request of the officer, as was the defendant here, according to one aspect of the evidence, would certainly have no more right than the officer himself. On the facts so postulated, the jury could not be justified in finding the defendant guilty of manslaughter only, as these charges would have authorized them to do ; nor would they have been authorized to conclude that defendant did not entertain the formed design to kill, which is necessary in murder, since the law presumes such formed design-from the facts that the defendant intentionally used a deadly weapon with a fatal result — and this, not in an exigency which justified or even palliated the act, but solely for the purpose of preventing the escape of a misdemeanant, — an end which the law does not admit of being subserved by the taking of life, and which constitutes no excuse, justification or palliation for the taking of life. Both these charges were, therefore, not only misleading and confusing-in their tendencies, but affirmatively incorrect and unsound statements of the law; and each of them was properly refusedTN

There was evidence to the effect that, on the morning of the day of the homicide, when a witness and defendant were going to Calera to sue out the warrants for the arrest of the deceased, “defendant told witness that he' had killed or shot five (5)' men while he was guarding convicts for Mr. Jackson at Blount Springs in Blount county, Alabama; and also, that on the previous night, while defendant and witness were near the dwelling-house of deceased, if deceased had shown his head at the door, he, defendant, would have shot him.” It is most clear to us that this was evidence tending in some degree to show that defendant had killed other persons than deceased, or five persons other than deceased, and that defendant had shed the blood of other men than that of deceased; and it was a fair inference to be drawn in argument, and by - the jury, from the facts which this evidence tended to establish, that defendant had shot five other men, and would have causelessly shot deceased through the window of his house, bad the opportunity to do so been presented; tbat “tbe defendant liked to sbed man’s blood.” Charges 9, 10 and 11, wbicb respectively asserted tbat there was no evidence tbat defendant “ever killed any other person,” <fcc., &c., “ever sbed any other man’s blood,” or “liked to sbed man’s blood,” were therefore well refused. And it is of no consequence in this connection tbat tbe declarations of tbe defendant, as to shooting or killing five men at Blount Springs, might have been excluded from tbe jury as irrelevant testimony, bad objection been made to it. No objection was made, and it was treated as competent evidence.

Counsel do not insist upon tbe exceptions reserved to tbe court’s action in refusing to give several other charges requested by "the defendant, and we will therefore not discuss those rulings. Tbe instructions have, however, been carefully examined, and it will suffice to say that they are patently either affirmatively bad, or, when referred to tbe evidence, involve such tendencies to mislead tbe jury as to justify their refusal.

Tbe judgment of tbe Circuit Court is affirmed.  