| Ala. | Apr 4, 1907
The bill of exceptions in this case was not signed until after the expiration of 30 days from the date of the trial. No order for extension of time for the signing of the bill was made by the court within the 30 days of the day of the trial. The bill of exceptions cannot, therefore, be looked to or considered for the purpose of reviewing the rulings of the court on the admission and rejection of evidence and the giving and refusal of charges on the trial, here assigned as errors on the record. — Acts 1896-7, p. 332.
A motion was made in the court below for a new trial within 30 days of the date of the trial. This motion was heard and overruled by the court, and in entering-up judgment overruling the motion the court made an order granting the plaintiff 30 days for a bill of exceptions. Within this time the court made an order extending the time for bill of exceptions 10 days from the
The motion for a neAV trial Avas based on the alleged errors of the trial court in the admission and rejection of cA'ideuce on the trial, to AAdiich'exceptions to the rulings of the court were at the time reserved,'ano. to'the giving of the several written charges requested by the defendant in AA-riting. Among the AATitten charges giAron by the court at the instance of the defendant was the folloAving: “The court charges the jury that, it is a presumption '-of Uiav that Owens did not kill Cobb unlaAvfully.” The presumption of innocence of a defendant obtains in a civil action, as Avell as in a criminal prosecution, Avherd the cause is-based upon-an unlawful killing. "It,is, of course, a rebuttable presumption, and in either case may be overcome by eA’idence; the only difference being that in a criminal prosecution thé evidence should be sufficiently strong to satisfy the mind of the court or jury trying the case betOnd a reasonable doubt, AA’hile in a cíaí! action the degree is to the reasonable satisfaction of the jury. Did the charge in the present case assert more than the mere presumption of innocence indulged by the laiv in -favor of eAmrv defendant, AA’heii charged aaíIIi the commission' of an offense? We think so, Avhen construed in connection Avith the eA’idence in the case, as all charges should be. The evidence without dispute showed that the- defendant intentionally cut the deceased in four or five places, one of which cuts proved fatal. In the. light of this evidence, without - more, it could not be said as matter of laAv that the killing Avas not unlawful, and yet this is AA’hat the charge asserts, or at least undoubtedly, we think, Avas calculated to lead the minds of the jury to
The evidence without dispute showing that the killing Avas done in a personal encounter, the only theory upon Avhich it could be said that it was not unlaAvful Avould be upon the theory of self-defense. The law is Avell settled in our state that, Avhen self-defense is invoked, the burden of proof as to this plea is on the defendant. Our conclusion is that the trial court committed reversible error in the giving of this charge to the jury. We have considered the other charges, given at the instance of the defendant, and while some of them, it may be, were faulty, as being argumentative, and might, for that reason, have been properly refused, yet no reversible error was committed in their being given.
Under the statute (section 1794 of the Code of 1896) the witness Raymond Cobb, having a pecuniary interest in the result of the suit, was incompetent to testify as to any statement by or transaction with the deceased. The trial court, therefore, committed no error in its rulings as to the testimony of this witness to^ which exceptions Avere reserved. For the same reasons, under the rule that the testimony of this witness was excluded by the court, the testimony of the defendant, a party to the suit, Avhich was objected to by the plaintiff, should have been excluded. The only purpose for which the testimony of the defendant, AAdien testifying as a witness in his own behalf that he did not go south of the road, could have been offered, Avas to show that he was not the aggressor in the fight. This AAras permitting him to do indirectly what he could not do directly, if he was incompetent to testify as to the transaction (the difficulty) between him and the deceased. The court erred in its ruling in admitting this evidence. Exceptions Avere reserved to the other rulings on the evidence, but we fail to see any merit in those exceptions.
For the errors committed on the trial, and .which were made grounds in the motion for a new trial, the court should have granted the motion, and for the refusal to do so the judgment Avill be reversed, and a judgment
Reversed, rendered, and remanded.