#### Lundsford *v.*The State.

*Murcler.*

(Decided June 30, 1911.

56 So. 89.)

1. *Evidence; Res Gestae.*— Declarations made by accused a few minutes after the shooting, and after he had gone into the house, as to how the shooting occurred were too remote from the occurrence to constitute a part of the res gestae.

2. *Charge of Court; Covered by Those Given.*— It is not error to refuse instructions covered by requested instructions already given.

3. *Homicide; Instructions; Self Defense.*— Where there is no evidence tending to show that the killing was done in self defense charges as to the law of self defense are abstract, and properly refused.

4. *Same; Responsibility; Accident.*— If a homicide was preceded by, resulted from, or was an incident of an unlawful act of the accused in following decedent with a loaded gun with which he was killed, the accused may be convicted of an offense embraced within an indictment charging murder although the homicide was accidental and partly due to decedent’s own fault.

Appeal from Hale Circuit Court.

Heard before Hon. B. M. Miller.

Will Lunsford was convicted of manslaughter and he appeals.

Affirmed.

R. B. Evins, for appellant.

Counsel discuss the question of self-defense and in support of his contentions cites, on the question of freedom from fault, *Waller v. The State,*89 Ala. 79; *Robinson v. The State,*45 So. 916; 25 A. & E. Enc. of Law, 268; *Fussell v. The State,*94 Ga. 78; *Massey v. Commonwealth,*29 S’. W. 871; *Newman v. The State,*69 S'. W. 519. Under these authorities it is insisted that the defendant was entitled *39to go to the jury on the issues of *self-defense.*— Newsom, *v. The State, 75*S. W. 269. The court should have permitted the evidence offered as to the exclamation of the witness Knollton, and as to the explanation of defendant immediately after the *shooting.*— Hartnett *v. Mc*Mahon., 168 Mass. 3; *M. & M. B. B. Go. v. Ashcraft,*48 Ala. 31; 3 Wig. Sec. 1755; *State v. Lockett,*68 S. W. 565; *State v. Gabriel,*88 Mo. 631; 21 A. & E. Enc. of Law, 99-102; *Nelson v. The State,*130 Ala.; *Janes v. The State,*103 Ala. 1; *Drake v. The State,*110 Ala. 9; *Simmions v. The State,*145 Ala.61; *Williams v. The State,*103 Ala. 33; *Walle v. The State, infra.*Manslaughter in the second degree may he the result of an intentional blow, and is not essentially a negligent kill*ing.*— State *v. Benjamin,*1.21 Ala. 26. Counsel discuss other charges refused, with citations of authority.

B. O. BricivELE, Attorney General, and T. H. Seay, Assistant Attorney General, for the State.

The declarations are not admissible because not of the res gestae. *—Oliver v. The State,*17 Ala. 587; *Roberts v. The.State,*68 Ala. 515; *Goley v. The State,*87 Ala. 57; *Hill v. The State,*156 Ala. 3. Sufficient time had passed in which the defendant might form a decision to make these declarations as evidence for *himself.*— Hawkins *v. The State,*129 Ala. 71; *Pitts v. The State,*140 Ala. 70; 12 Cyc. 428. The exclamation of the witness Knollton was not *admissible.*— Ponville *v. The State,*91 Ala, 39; 32 Ark. 289; 30 S. W. 450. The charges relative to the law of self-defense are abstract, and the defendant offered no proof that he was in imminent danger or that there was no reasonable mode of *escape.*— Goockom *v. The State,*102 Ala, 87; *Naiogher v. The State,*105 Ala. 29. The defendant was properly convicted of manslaughter *40in the second *degree.*— Jolmson *v. The State,*94 Ala. 35; *Sanders v. The Sítate,*105 Ala. 4.

WALKEN, P. J.

The deceased, Frank Lewis, was a negro youth, about 19 years of age, who was employed by the defendant as a laborer or servant. He was engaged in service about the defendant’s residence. That he came to his death as the result of a shot fired from a gun in the hands of the defendant is a fact about which there was no dispute in the trial. The conflict in the evidence was as to the circumstances of the shooting. The evidence offered by the prosecution was .to the effect that the deceased ran out of the defendant’s residence; that he was followed by the defendant, who* had the gun in his hand; that the defendant called to the deceased to come back, and shot him when he was about 10 feet away.

The version of the affair given by Mrs. Ellen Know-lean, the principal witness for the defendant, was as follows : “The first I knew of any difficulty, Mr. Lunsford was sitting in his dining room, which opens on the back porch. Frank came up on the porch, and said, ‘Have you got any money?’ Mr. Lunsford said, ‘Yes; I generally have a little; why?’ Frank said, “I want some.’ Mr. Lunsford said, ‘Where did you get those eggs from?’ Frank replied in an insolent manner: ‘It’s none of your business. Other people have eggs besides you.’ Mr. Lunsford said: ‘All right; we will go and look at them, and see whose they are.’ Frank said, ‘It’s none of your business whose eggs they are, and I won’t show you.’ Mr. Lunsford reached over towards a gun in a corner, and Frank ran out into the yard. Mr. Lunsford came out on the porch with the gun in his hand, hanging down by his side; and walked down on the ground, and said, ‘Gome back, and go with me to see those eggs.’ *41Frank came back towards Mm, and Mr. Lunsford slightly turned to go in the direction of Frank’s house, where the eggs were. Frank was approaching him, and as he neared him he in an angry manner leaped towards Mr. Lunsford and grabbed a.t the gun. As he did so, Mr. Lunsford jumped back, and said: ‘Don’t touch this gun; keep your hands off this gun.’ Frank grabbed for the gun again, and caught it by the barrel; Mr. Lunsford holding it by the stock. As he grabbed the gun, Mr. Lunsford said: ‘Turn this gun loose; don’t try to take this gun.’ As Frank grabbed the gun, I ran back into the house, and heard the gun. Seeing Frank grab the gun, hearing Mr. Lunsford tell him to turn it loose, and hearing the report of the gun were almost simulta neous. A second or two later, from the front door, to which I had run, I saw Frank walking through the front yard, with blood running down his leg. * * I went with Mr. Lunsford after the shooting to where Frank Lewis Avas sitting, on the side of the road, just outside Mr. Lunsford’s front gate. The said Frank said, ‘Mr. Will, I didn’t think you were going to shoot me,’ to which the defendant replied: ‘I did not intend to shoot you, Frank; you made me by jerking the gun.’ The defendant appeared very much distressed.” No witness for the defendant testified to seeing the parties at the time the shot Avas fired.

On cross-examination of one of the witnesses for the state; and on the direct examination of a witness for the defendant, his counsel asked questions whereby he sought to elicit proof that defendant, “within two minutes after the shooting, ran into the house and stated to members of his family that he had unintentionally shot Frank Lewis, and asked them for God’s sake to help him save his life”; also of defendant’s efforts,- after he had been in the house, to stop the flow of blood *42from, the wound inflicted on the deceased; also that defendant, after the shooting, “within a minute or two thereafter,” ran into the house, and said, “I have shot Frank Lewis; he did it grabbing the gun”; also that the defendant, immediately after the shooting, gave orders to send for a doctor to attend the deceased; and also' that Mrs. Knowlen, when she saw the deceased walking' through the front yard immediately after the shooting, exclaimed, “Thank God, it was the negro, and not Will.” Exceptions were duly reserved by the defendant to the action of the court in sustaining objections interposed to the questions just referred to.

It is insisted in tlie argument of the counsel for the appellant that the court was in error in excluding proof of the above-mentioned acts and declarations subsequent to the shooting. It is urged that those acts and declarations constituted part of the res gestae, and as such could properly he proved. In this view we cannot concur. Under the rulings in this state, such declarations or acts, so separate in point of time and place from the main, transaction which is the subject of investigation, are not to be regarded as parts of that transaction.—*Pitts v. State,*140 Ala. 70, 37 South. 101; *Nelson v. State,*130 Ala. 83, 30 South. 728; *Harkness v. State,*129 Ala. 71, 30 South. 73; *Hill v. State*156 Ala. 3, 46 South. 864. Frequently it is a matter of difficulty to determine whether acts or declarations of one of the parties to a transaction, not strictly coincident' with the central fact of the occurrence, are so related to it as to illustrate or explain it and to be in reality parts of the one transaction, or stand apart from it as subsequent events. In considering whether certain declarations which had been offered in evidence were to be regarded in the one light or the other, it was said, in the opinión in the case of *Nelson v. State,*supra: “And *43this depends upon whether the circumstances are such as that it may with reasonable certainty be affirmed 'that the declarations were *produced*by and *instinctive*upon the occurrence to which they relate, rather than a *retrospective narration*of them.” In that case the proof, which was held to be admissible, was of a declaration in regard to a fatal difficulty made by one of the parties to it, and the ground upon which it was held to be admissible was that, though it was made after the fatal shot was fired, yet, as the difficulty was to be regarded as still in progress at the time, what Avas said in the course of it should be considered as really a part of the transaction. Not so in the case at bar.

At the time of the declarations and acts here sought to he proved, the shooting in question was a thing of the past. One of the parties had gone one way; the other another. They were no- longer in the presence of each other. The incident was closed. The court could not say with reasonable certainty that the declarations and acts sought to be proved were the unpremeditated results of what had happened betAveen the deceased and the defendant, rather than the results of a subsequent design on the. part of the defendant, quickly formed Avhen the deceased was no longer in his presence, to give the occurrence an aspect favorable to himself and to minimize as far as possible its disasterous consequences. The question of the admissibility of the proposed proof Avas one for the court. It could not be put in error because of its action in excluding it, unless this court would be justified in affirming that it appears with reasonable certainty that the declarations and acts sought to be proved were spontaneous and unpremeditated accompaniments of the main facts of the occurrence, explanatory of the conduct and purposes of the participants, and that, for lack of sufficient time to afford an *44opportunity for thought or deliberation, they could not be attributed to subsequently formed motives or purposes. It would involve a failure to recognize as a fact the wonderful alertness of the human mind, under the quickening influence of exciting incidents, to plan and put into execution means of self-defense, whether against physical violence or an actual expected incriminating charge or imputation, to say that one who had shot another could not within a much shorter period than two minutes conceive, on withdrawing from the scene, the purpose of putting the affair in a light most favorable to himself, and also be prompted by a hasty repentance to adopt prompt means of averting a possibly fatal consequence of his act.

The acts and declarations of the defendant subsequent to the shooting, which were proposed to be proved, were properly excluded, because it could not with reasonable certainty be affirmed that they were spontaneous, unpremeditated, proximate results of the occurrence of which the shooting was the culminating incident, and that they could not have been attributable to motives or impulses on the part of the defendant afterwards coming into play. Subsequent acts or declarations of a participant in an occurrence are not lightly to be declared integral parts of it, pertinent on an inquiry as to its real nature or character, as shedding light upon the influences which were controlling in bringing to pass what was done, where they may as well be traced to an origin, in whole or in part, in thoughts or feelings arising on and after contemplation of or reflection about what already had happened, as to the incentives to which the conduct of such participant which is under consideration may be attributable.' Declarations the proof of which should be excluded under the rule against hearsay testimony are not to be'permitted to slip in *45under a false guise of forming a constituent part of something that had gone before. The exclamation of Mrs. Knowlen, sought to be proved, amounted to a mere comment by an outsider on the occurrence after it had happened, and could not possibly shed any light on the past acts or purposes of the participants. That proposed proof also was properly excluded.

We are unable to discover any evidence in this record having a tendency to prove that the shooting was a voluntary act on the part of the defendant done in self-defense. The evidence offered by the state was to the effect that the shooting was under circumstances which wholly precluded any claim on behalf of the defendant that it was done in self-defense. The tendency of the evidence introduced in behalf of the defendant was to prove that the shooting was the result of the deceased grabbing or jerking the gun, and not at all attributable to a purpose or intention on the part of the defendant to shoot the deceased. In the most pointed and unequivocal manner, the defendant, by the evidence he introduced and also by his offers of proof which the court excluded, made plain his purpose to disclose the occurrence in question to the court and jury under such an aspect as to exclude' an inference that the shooting was in any sense a voluntary and intentional act on his part. There was no hint in the evidence of a claim on the part of the.defendant that the fact was that he intentionally shot the deceased, but that his act in so doing was excusable, because it was really or apparently necessary for the defense of himself. -Charges dealing with the law of self-defense may properly be refused as abstract in a homicide case from which there is absent any evidence tending to prove the existence of a state of facts upon which the defendant could legally base a claim that the killing was in *self-defense.*—Thomas *v.**46*State,*150 Ala. 31, 43 South. 371; *Handy v. State,*121 Ala. 13, 25 South. 1023; *Lewis v. State,*96 Ala. 6; 11 South. 259, 38 Am. St. Rep. 75; *Anderson v. State,*160 Ala. 79, 49 South. 460. The law of self-defense is not applicable in a case of a killing resulting from an act which was accidental and unintentional The defendant made the issue in this case one between an intentional killing, under circumstances precluding any claim of self defense, and a killing resulting from a shot unintentionally fired from a gun in his hands. Charges 1, 2, 6, 13, and 14, refused to the defendant, were instructions as to the law of self-defense. They were not applicable to any phase of the evidence, and the court is not to be put in error because of its refusal to give them.

The propositions asserted in charge 19, refused to the defendant, were fully covered by other written charges given at his instance,, and he could not have been prejudiced by the refusal of the court to reiterate in slightly varying phraseology propositions already stated to the jury in writing.

The defendant’s written charge 20 was properly refused, because it predicated a right of acquittal upon the facts there hypothesized. The charge was calculated improperly to confine the attention of the jury to the exact time when the shooting took place. If the jury found from the evidence that it was preceded by, resulted from, or was an incident of, an unlawful act of the defendant in following the deceased with a loaded gun, they would have been justified in convicting him of an offense embraced in the indictment, though they found from the evidence that the death of the deceased was unintentional, or accidental, and that it was in a measure due to his own *fault.*—Barnes *v. State,*134 Ala. 36, 32 South. 670; *Thompson v. State,*131 Ala. 18, 31 *47South. 725; *White v. State,*107 Ala. 132, 18 South. 226; *Chapman v. State,*78 Ala. 463, 56 Am. Rep. 42.

Affirmed.

de Graffenried, J., not sitting.