Edgar v. State, 43 Ala. 45

Edgar v. State

43 Ala. 45 | Ala. | 1869

PECK, C. J.

1. There is nothing in the objections taken to the jurymen, Titcomb, John Gray and James Riley ; their examination showed they were householders, and that made them lawful jurymen in this ease. — Revised Code, § 4092.

2. There is no error in sustaining the objection of the solicitor, to the answer of the witness Summerlin, to the question asked by appellant’s counsel, and in excluding the answer from the jury — 1. Because the answer, if it had not been excluded, should have had no influence with the jury. 2. Because it had not been communicated to the appellant, and he knew nothing of it at the time of the shooting.

3. The second assignment of error, to-wit: “ the refusal to permit the defendant to testify after a man of color had been sworn on the part of the State,” is not sustained by the record. It does not appear that he was offered to be sworn, as a witness, in his own behalf.

4. There is no error in the charge given to the jury by the court, to-wit: “ That as a matter of law, I charge you that the facts and circumstances of the ease are not such as would tend to justify and impress the human mind with a reasonable belief, that life was in danger, or a reasonable apprehension of great bodily harm.”

It is insisted, that this is a charge on the facts, and for that reason, erroneous. We do not hold the charge complained of to be a charge upon the effect of the testimony, within the meaning of section 2678, of the Revised Code; but if it is, this court decides, in the case of English’s Ex’r v. McNair’s Admr’s, 34 Ala. 40, that, “ the appellate court will presume, unless the contrary is shown by the record, that the charge given by the primary court, on the effect of the evidence, was given on the written request of one of the parties.”

The record, in this case, does not show whether this charge was, or was not given, on the written request of one of the parties, therefore, the appellate court, to sustain the judgment of the court below, will presume it was given on the written request of one of the parties. It is the every day’s practice, where there is no conflict in the evidence, for courts to charge the jury, to find for one or the other of *52the parties in the case, and such a charge is in one sense, a charge .upon the'effect of the testimony, yet it has never been held to be an error.

5. The first charge asked by the accused, does not contain a correct legal proposition, and was therefore properly refused. It was not necessary to convict the accused of voluntary manslaughter, that the jury should believe, that he took the life of Bassett in the heat of passion, after altercation with Duck and Baird, on the interference of Bassett, and without any malice towards Bassett.

The Code does not divide the crime of manslaughter into voluntary and involuntary manslaughter, but, into manslaughter in the first and second degree. The section of the Revised Code, 8659, says : “ Manslaughter by voluntarily depriving a human being of life, is manslaughter in the first degree; and manslaughter committed under any other circumstances, is manslaughter in the second degree.” The charge, as applicable to this case, seems, in no sense, to have been an appropriate charge, and was therefore rightly refused.

6. The second charge asked, was not warranted by the evidence. The evidence no where speaks of any combat whatever. The charge was properly refused.

7. This charge, the third one asked, is in writing, and we think might have been refused altogether, without error ; the charge is speculative in its character, not properly growing out of the evidence, and well calculated to mislead the jury. It is quite true, there can be no murder without malice, express or implied. As the charge is framed, the jury would most probably have believed that the accused could not be convicted, unless there was express malice against Bassett; and thus, they might have been deceived. The charge might have been refused as asked, without error; but, being in writing, the court should not have added any qualification to it, and in doing so, fell into an error that must reverse the judgment.

8. The last charge asked was in writing. We think it should have been at once refused. Being in writing, it should have been given or refused, as asked. Section 2756, of the Revised Code, is plain, direct and peremptory, “must *53be given or refused, in the terms in which, they are written.” The court has no right to add any qualifications. Although we do not approve of the law, yet, it is so written, and the accused had a right to insist upon the law as it is. If the court may add qualifications to charges so asked, the effect of the law is in reality defeated. Eor these errors, the judgment of the court below is reversed, and the cause remanded for another trial.