#### HUGHEY *vs.*THE STATE.

[indictment eob mttbdeb.]

3. *Threats, evidence of; for what purpose inadmissible.*— The proof showing the commission of a felonious homicide, perpetrated by the accused by lying in wait, he offered evidence that deceased had often threatened his life, and the day before the killing had lain in wait in the road to-shoot him, and that this was known to accused before the killing ; but also stated, in reply to a question by the court, that he did not expect-to show any act done by deceased at the time of the killing indicating an intention to kill accused or do him great bodily harm, but that he did expect to show such act on the part of deceased as late as the evening before, and thereupon the court rejected th^ *evidence,*— Held, that the evidence was incompetent either to justify or excuse the homicide, and as that- was the only purpose for which it was offered, the evidence was rightfully excluded.

3. *Same; what necessary to excuse or justify homicide.*— No mere threats to take life, or even past attempts to execute such threats, will justify or excuse a felonious homicide. There must be actual impending danger to the slayer at the time of the fatal blow, or such a state of facts as are justly calculated to impress upon his mind a reasonable belief of the necessity to take life.

Appeal from the Circuit Court of Marion.

Tried before Hon. W. S. Muijd.

*98The appellant, George Hughey, was indicted for the murder of James W. Crumbia, tried, found guilty of murder in the first degree, and sentenced to the penitentiary for life.

The evidence shows that Hughey and Crumbia were brothers-in-law, living about half a mile apart, and between whom bad and unfriendly feelings had existed for some months previous to, and up to the time of the killing. In reply to a message sent by deceased the day before the killing, informing Hughey that if he would admit that deceased had not stolen some hogs, &c., deceased would be at peace with him, Hughey replied: “What I would say once I would say twice, and what I would say twice 1 would die by; and if Crumbia believes there is no hell in Georgia, let him go on.” Hughey, on the same day, remarked to another witness, who had expressed a desire to see Crumbia and settle matters, that if witness did not go soon, he would not get to see Crumbia. '

Two witnesses testified that a few days after the killing the defendant gave them the following account of the lolling : On the morning of the killing he took his gun and went through the fields to Orumbia’s house, and on getting within a hundred or so yards of the house, sat some time on the fence. ' He then started in the direction of the house, and after going a short distance he saw deceased in the field, and immediately presented his gun and popped a cap at deceased, who threw up his hands, asked “ what do you mean,” and then ran into the house. Defendant went a little closer to the house, stopping at the root of a tree, and while there took out a memorandum book and wrote something in it, “ as he did not kn<jw who might be killed, what he wrote would show something.” At this tree Hughey remained for two hours, and then went up near the house and stopped. Defendant intended to get in front of the house, but before he got in front of the door deceased opened it, stepped in, looked around, and immediately went in and shut the door. Defendant thought deceased saw him, and he (defendant) immediately cocked his gun, presented it towards the door, held his thumb on the hammer of the lock so that he might not shoot his sister by mistake, *99■as he wanted to be sure that it was deceased before he shot. “As soon as deceased appeared at the door, and Hughey was certain that it was Crumbia, he pulled down on him.”

Another witness testified that Hughey told him that while sitting at the root of the tree, he deliberated what he should do. Other witnesses testified that shortly after the shooting defendant told them that “ he had killed Crumbia, and wanted them to see him decently buried at defendant’s expense; that he regretted that he had killed Crumbia, but Crumbia had repeatedly threatened his life, and waylaid the road the day before to kill him.”

Defendant then offered to prove by several witnesses that “ on various occasions and for some time before the killing, deceased had been threatening defendant’s fife; that ■on Saturday before the killing deceased presented a gun at defendant^ and would have shot him had he not been prevented by the by-standers; that on the day before the killing deceased waylaid the road, with his gun, for the purpose of shooting defendant, who, being warned of it, went another road, and deceased, after waiting some time on the road, went to defendant’s home and tracked him a mile or two. The State objected to the admission of the evidence. The court asked if defendant expected to show any act done by deceased at the time of the killing indicating an intention on the part of deceased to kill defendant or do him great bodily harm: and upon the reply of his counsel, that they did not expect to show any such act on the part of deceased later than the evening preceding the killing, the court sustained the objection and excluded the proposed testimony, and defendant excepted.”

The widow of deceased testified that on the morning of the killing Crumbia requested her to go to her father’s to see if defendant was there; that upon her refusal to go just then, deceased said he would go, and taking his gun started off. Soon she heard a cap pop, and saw deceased running with his gun first on one shoulder and then on the other. He ran into the house and she shut the door. Deceased then hunted for a crack to shoot through, and asked her *100to go out and look for defendant, which, she did, but saw nothing of him. After this, at deceased’s request,-she went to her father’s, which was half a mile distant, to hunt for defendant, but saw nothing of him and returned. Deceased went to the door and turned away, and soon looked out again, when the gun fired and he fell, shot through the-body, and expired in a lew minutes.

After the testimony of this witness, defendant again offered to prove the threats and attempts of deceased as-, proposed before; but the court excluded the evidence, and defendant excepted.

The court charged the jury as follows:

1. “If the jury believe from the evidence that there was. bad and unfriendly feeling existing between defendant and deceased at the time of the killing, and that deceased had made threats against defendant, and on the day before the killing waylaid the defendant; and should further believe that at the time of the killing no attempt was being made to execute said threats, and nothing done to show an intention to execute said threats by deceased, that then the threats so made would afford no excuse or justification for the killing of the deceased.”

2. “ That if the jury shall believe from the evidence that bad and unfriendly feeling had grown up between deceased and defendant, and existed at the time of the killing, and that on the morning of the killing the defendant left his home -with the intention to take tbe life of deceased, and that on the way to deceased’s house defendant met deceased about 150 yards from his home and popped a cap at deceased, and that deceased ran into his house and his wife closed the door, and that defendant, after deliberating some time, went up to the house of the deceased, and as soon as deceased showed himself the defendant shot and killed the deceased, this would be murder on the part of defendant, notwithstanding deceased may have made previous threats to take the life of defendant, and may have waylaid him for that purpose on the day before.”

3d. That if the jury believe from the evidence that defendant may have believed he would have either to take *101tbe life of deceased or lose bis own at some future time, tbis would not justify or excuse tbe. billing of deceased, unless at tbe time of tbe kilhng deceased did’some act showing an intention of taking tbe life of defendant, and wbicb act was not provoked by some act of defendant at tbe time of tbe killing, showing an intention on tbe part of defendant to take tbe life of deceased.

These charges were written, and tbe jury, with tbe consent of tbe court, took tbe charges with them when they retired. Tbe defendant excepted to each of tbe charges, and to tbe action of tbe court in allowing tbe jury to take tbe charges with them.

Tbe defendant then requested tbe court to give tbe following written charges:

1. That if tbe jury-believe from all tbe evidence that defendant bebeved it was necessary to take tbe bfe of deceased, and defendant acted upon that belief alone, then it would rebut tbe presumption of malice, and defendant in that case would not be guilty of murder.

2. That tbe delusion on tbe part of tbe defendant, that deceased would take bis bfe, and that it was necessary for him to kih deceased to prevent tbe loss of bis own bfe, brought about from bis threats and lying in wait; if bom these circumstances defendant really and honestly bebeved it was necessary to take tbe bfe of deceased to save bis own, then defendant is not'guilty of any offense. Tbe necessity wbicb will justify tbe taking of life need not be actual, but tbe circumstances must be such as to impress tbe mind of tbe slayer with a reasonable bebef that such necessity is impending, and tbe jury are to determine that fact from ab tbe circumstances.

3. That if tbe jury bebeve from tbe evidence that there was such a derangement of defendant’s mind at tbe time of tbe killing, that if be did not bib deceased, tbe deceased would take bis life, [and that] tbe kihing was [done] under such a state of mind, they should find defendant not guilty.

4. If the jury, after weighing all tbe testimony, have a reasonable doubt whether tbe defendant lolled deceased *102with malice, or to protect his own life, then they must acquit.

The court refused to give any of these charges, and defendant duly excepted.

• W. S. Earnest, for appellant.

The charges given are-based upon, and in fact are in the language of the court in the case of *State v. Prichett,*22 Ala. 39.

While we recognize the doctrine laid down in that case as good law, we hold that it is not applicable to the ease before the court. That was based upon threats only ; this, upon acts and attempts, — -trying' to shoot defendant, waylaying the road for him, tracking him on his mule, the day before the killing, and in the morning by sun-up, with his gun going to hunt the defendant. They met, as the evidence shows, on the road from the house of the slain to that of the defendant, about half way.

In the case above referred to the court says: “But however bad or desperate that character may be, and however many threats such person may have made, he forfeits no right to his life until by an actual attempt to execute his threats.” In this part of the sentence, and the concluding part, the court intends to draw a distinction between “threats” and “attempts.” ' “Where threats are made *only,*there must be some act or' demonstration at the time of killing.” But where there have been attempts-to kill at different times and in different ways, by waylaying, *&o.,*it does not require an attempt at the time.

2. The charge is given upon the assumption of law that malice express, as defined in the law books and in the Code (§ 3653) can not be explained; that if there is a lying in wait, or deliberation, that fixes conclusively the offense. This is an invasion of the rights of the jury. Malice is the essential ingredient of murder. The jury must look to the facts, to all the facts, to find whether malice' entered into and made the act murder, or a less offense. -The case of *Oliver v. The State,*17 Ala. 598, gives to the jury all the facts, and leaves with them to find whether the defendant acted from malice, or was governed by the law of self-*103protection; and if deceived by appearances, if he acts on :such facts as a reasonable man would act, it rebuts malice, though there was deliberation in the killing.

3. The charges asked only sought to leave all the facts to the jury, and for them, as they had a right to do, to determine the malice or the want of malice.

*4.*The refusal to let all the acts and attempts to kill, waylaying, and tracking, come in, was error. They are of a higher order of evidence than mere idle threats. They can not be placed upon the same level with threats. But if true, as the defendant proposed to prove, they justified, or at least excused the defendant in doing as he did.

J. W. A. Sanford, Attorney-General, *contra.*

PETERS, J.

The appellant, Hughey, was convicted of murder in the first degree and sentenced to the penitentiary for life, at the fall term, 1871, of the circuit court of Marion county. And he appeals to this court from this judgment of .conviction on the matters set out in his bill of exceptions.

No threats unaccompanied with acts which threaten the life or limb of the slayer, will justify or excuse a felonious homicide. The threats insisted on in this case were not of this character. The court properly excluded them, as they could have been offered for no other' *purpose.*— United *States v. Wiltberger,*3 Wash. C. C. R. p. 515; 2 Archl. Cr. Pl. p. 223 (marg.) *et seq.*and notes, Waterman’s ed. 1853.

The objections to the charges given by the court, and to the refusal of those moved for by the defendant on the trial below, proceed upon the same mistake, that mere antecedent threats are an excuse or justification for a felonious homicide. This is not so. There must be actual danger to the slayer at the time of the fatal blow, or such a state of facts as are justly calculated to impress his mind with the existence of such danger, before he is justified to strike in self-defense. Self-defense is simply the resistance of force, or seriously threatened force actually impending, by force sufficient to repel the danger, and no more. If it goes beyond this, there is guilt which is not excusable or *104justifiable. This is the result of the eases and authorities above cited. — 2 Bouv. Law Dict. p. 509, *Self-Defense,*and cases there cited. On the trial below there was no proof of actual impending danger, or any seeming danger, which would have justified-the prisoner in his heartless destruction of his victim’s life. He sought the occasion to kill, with the purpose to kill, when there was no sufficient necessity for it, and when it might have been avoided, and when it was clearly within his power to have resorted to peaceful means to restrain the deceased, had it been his wish to have assaulted him. — Rev. Code, p. 741, § 3956, *et seq.*We think the conviction was eminently proper, and regular; and it must stand.

The judgment of the court below is affirmed; and that court will proceed to execute its sentence as‘required by law.