Baldwin v. State, 111 Ala. 11

111 Ala. 11 | Ala. | 1895

COLEMAN, J.

The defendant was indicted for murder in the first degree, tried, convicted of murder in the second degree, and sentenced to inqn’isonment in the penitentiary for ten years. The questions reserved do not-require any extended discussion of the facts of the case or of the legal questions involved. The first exception is upon the ruling of the court, in allowing the prosecution to challenge for cause the juror Bunkley. The record shows that this juror had been summoned as a witness in the case, both by the prosecution and the defendant. The question is not an open one in this State. It has been directly adjudicated adversely to the appellant. — Commander v. The State, 60 Ala. 1; Atkins v. State, Ib. 45.

It may be that the oath administered to the jury does not strictly conform to the oath prescribed by the statute, and in the absence of a statute relative to the question, might work a reversal of the cause. Section 4329 of the Cr. Code reads as follows : “No criminal cause taken by appeal to the supreme court shall be reversed because of any defect in the administration of the oath to any grand or petit jury, unless the record in the cause discloses .the fact that some objection was ‘taken in the court below, during the progress of the trial, based on such defect; but this rule shall not apply to cases where it appears affirmatively from the record that the appellant did not have the benefit of counsel on his trial in the. court from which the appeal was taken.” It affirmatively appears from the record that the defendant had the benefit of .counsel on his trial.

The remaining exceptions relate to the giving and refusal of instructions to the jury. It may be that some of the charges given at the request of the prosecution, were objectionable as being argumentative, and might have been refused on this account, without error. The giving of an instruction of this character, which asserts a correct legal proposition, is not ground for reversal, as held by us many times. Tested by this rule, we find no error in the giving of these instructions. — Trufant v. White, 99 Ala. 526; Brantley v. The State, 91 Ala. 47; McQueen v. The State, 94 Ala. 50.

. Charge “A” requested by the defendant was objectionable in.th.at.it omitted the word “reasonable.” The law does not require the evidence to exclude “every supposition or hypothesis” but that of the guilt of the defenclant, but only such as are reasonable, to justify an acquittal. The use of the word “supposition” in an instruction to the jury is not to be commended. — Blackburn v. State, 86 Ala. 595; Yarbrough v. State, 105 Ala. 43; Qarrett v. State, 97 Ala. 18.

Charge “B” requested by the defendant was objectionable and properly refused. To entitle a defendant to an acquittal upon the grounds of self-defense, it is not enough that the jury believe from the evidence, that he was reasonably free from fault in provoking or bringing on the difficulty. To be reasonably free from fault only, implies that although the defendant may have been at fault in bringing on the difficulty he may yet avail himself of the right of self-defense. Such is not the law. Whether an act done or words spoken by a party are of a character to provoke a difficulty, and did provoke it, is a fact to be determined by the jury. If they are such as are calculated to provoke a difficulty, and if they give rise to a difficulty, it cannot be said that the party was free from fault. — McQueen v. State, 103 Ala. 12.

What has been said covers every exception to be found ' in the record. We find no error and the judgment must be affirmed.

Affirmed.