89 So. 847 | Ala. Ct. App. | 1921
The defendant requested the court in writing to give this charge:
"The court charges the jury if they do not believe the evidence in this case beyond a reasonable doubt it is their duty to acquit the defendant."
This is the converse of the general affirmative charge that:
"If the jury believe the evidence beyond a reasonable doubt the jury must convict."
Where the evidence is without conflict establishing defendant's guilt, it has been held proper for the court to give this last charge upon request of the state, but where the evidence is in conflict or there are inferences legally to be drawn that would amount to a conflict, the general charge should never be given. So, in a case where there is no conflict in the evidence, the foregoing charge as requested by defendant might be properly given, although it merely asserts a negative, necessarily included in the affirmative charge, for the state when given. But in a case where the evidence is in conflict, with conflicting tendencies and many deductions to be drawn from the testimony, such a charge would take away from the jury the prerogative of weighing and considering every part of the testimony, accepting that part which they consider true and rejecting that part which they consider untrue, and basing their verdict upon that part which, after considering the whole, is sufficient to convince them, beyond a reasonable doubt.
In other words, the charge would never be proper, except in a case where the facts are undisputed. In this state "evidence" as used in our practice is synonymous with testimony, and where as in the case at bar, the facts are disputed, some of which must be discarded and disbelieved, in order for the jury to agree upon a verdict, the charge as requested would tend to confuse, rather than to aid, the jury in their deliberations.
Charge 6, refused to defendant, was abstract; there being several witnesses testifying for the state on whose testimony the verdict might have been predicated.
In defining the law of self-defense the court in its general charge said:
"But it is not necessary that the danger to life or limb or great bodily harm must be real. It need not be actual; but if it should present itself to a reasonable man that the danger was apparent to him, as a reasonable man, that he would suffer great bodily harm or danger to life or limb, he would be entitled to act on that apparent danger, and not as if he was in real danger."
In somewhat different verbiage this same rule was given in written charges 17, 27, and 28 requested by defendant.
While, as said in Kennedy's Case,
The same rule of law as that requested to be given in refused charge 18 was substantially and fairly given in the court's general charge, and in written charge 36.
Refused charge 19 has been approved *107
as a correct statement of the law and its refusal as constituting reversible error in the following cases: Twitty's Case,
Refused charge 41 is fully and fairly covered both in the general charge and in the given written charges, and the same is true of refused charge E.
The other questions raised will probably not arise on another trial.
For the error pointed out the judgment is reversed and the cause is remanded.
Reversed and remanded.