Chestnut v. State, 61 So. 609

Chestnut v. State

61 So. 609 | Ala. Ct. App. | 1913

Lead Opinion

PELHAM, J.

The refusal of the court to exclude that part of the answer of the state’s witness Alleen Denson to the effect that, when shooting at the witness, the defendant shot her daughter, was without prejudice to the defendant, as this fact was shown by the testimony of other witnesses without objection, was not denied by the defendant, and was without conflict in the evidence. Besides, there was but one difficulty, and the matter testified to was part of the res gestae. — McCoombs v. State, 151 Ala. 7, 43 South. 965. Charge No. 1 is abstract, in that it includes all the state’s witnesses. —Naugher v. State, 6 Ala. App. 3, 60 South. 458.

It is not clear what is meant by the language used in charge No. 3, “and the jury think their testimony on these beliefs should be disregarded,” etc. The charge is involved and confusing, and calculated to mislead the jury. Such charges are properly refused. — Hill v. State, 156 Ala. 3, 46 South. 864; Rigsby v. State, 152 Ala. 9, 44 South. 608.

Charges 5 and 6 are argumentative, and are of that class of charges which may be either given or refused without the court’s thereby being put in error. — Phillips v. State, 162 Ala. 14, 50 South. 194; Amos v. State, 123 Ala. 50, 26 South. 524; Montgomery v. State, 169 Ala. 12, 53 South. 991.

The proposition of law embodied in requested charges AA and S is covered by given charge D.

*76Charges Mj N, O, and P are not correct expressions of the law. An intent to murder is an essential element of the offense charged,'and it is sufficient to constitute the offense' if the assault, if it had not failed of its intended effect and had terminated fatally, would have resulted in murder in either degree. — Lawrence v. State, 84 Ala. 424, 5 South. 83. And, as opprobifious words can never reduce an unlawful homicide from murder to manslaughter (Smith v. State, 103 Ala. 4, 15 South. 843), it follows that “sudden passion from an immediate insult” is not enough to repel the imputation of malice under a charge for assault with intent to murder. — Lane v. State, 85 Ala. 11, (4 South. 730.)

We have discussed all the matters insisted upon as error in brief of counsel for the appellant, and discover no reversible error in the record, and the case will he affirmed.

Affirmed.

Rehearing

ON APPLICATION POR REHEARING.

The appellants counsel in their application for a rehearing in this case make earnest insistence that charge No. 1 requested by the defendant and refused is not abstract, and that it should have been given, even though it includes and applies to all of the state’s witnesses.

The evidence set out in the record shows that the participants in the difficulty resulting in the assault for which the defendant was being prosecuted were colored women, and that one of the state’s witnesses was a practicing physician, a white man, who testified as an expert with respect to the location of the wound, etc., on the body of one of the parties that had been shot during the progress of the difficulty. The doctor also testified as to the weak and run-down condition physically of the *77defendant, and it was shown that be was the physician Avho had been regularly attending the defendant by her voluntary selection and choice for some time, and there is nothing indicating unfriendliness to the defendant in the relations occupied and the attending circumstances from the data furnished, and nothing shown by the evidence on direct or cross-examination from which an exhibition of prejudice or anger or ill will or bias against the defendant could he imputed to this state’s witness. It appears as to this witness' (to pretermit unnecessary discussion of the testimony of any of the other state’s witnesses) that the charge was certainly abstract, and it is well settled in this state that the trial, court will not be put in error for refusing to give a charge that is abstract. The Supreme Court refused to put the trial court in error for refusing a charge of this same character when abstract as applied to the evidence, and affirmed the case in which it was refused, even though the charge was limited to any of the states witnesses, and did not include all of the witnesses, as does charge 1 in the instant case.- — Wright v. State, 156 Ala. 109, 47 South. 201. Whether or not the trial -court will be put in error for refusing to give a charge embodying this rule of law because abstract necessarily depends upon the facts in the particular case under consideration; and while the charge was held not to be abstract as applied to the facts in the case of Adams v. State, 175 Ala. 8, 57 South. 591, we find from the facts in this case that the charge, having reference to and including as it does all of the states witnesses, is abstract, and we do not think the trial court should be put in error and the case reversed for -the refusal of the court to give the charge in this case. The rule of law embodied in the charge under consideration could easily have been framed so that it would not be open to the vice pointed out, and *78yet given the defendant the full benefit to be derived from an instruction on the subject, but the charge as written has reference to and includes'all of the state’s witnesses, and the trial court should not be put in error for refusing it Avhen it is abstract as referred to one or more of the state’s witnesses. As said by the writer in the opinion of the court in Naugher v. State, supra, 60 South. 458, when practically the same charge was under consideration: “The charge, viewed in the light of the evidence, had a tendency to raise á question as to some of the state’s witnesses that was not involved or at issue on the trial, and as applied to these witnesses the charge was not based on the evidence, and was [therefore] abstract. The trial court should not be put in error for refusing a charge raising a question or matters not at issue on the trial,, or that is abstract.” — Naugher v. State, supra, and authorities there cited. ‘

The application for a rehearing" is overruled.