141 Ala. 29 | Ala. | 1904
The malice which is an essential element in the. offense of murder has always been described as “malice aforethought.” It is descriptive of the state of the mind of the slayer preceding and at the instant of the unlawful act of the killing. Although, for the existence of the malice no definite or appreciable space of time in law is required to be shown, yet it must be “aforethought”; that is, it must be related to
There was evidence on the part of the defendant tending to show that the defendant acted in self-defense. The written charge requested by the defendant and which, the court refused, correctly stated the law as to the burden of proof, and, in the opinion of the writer of this opinion, this was all it purported to- do, and when referred to the evidence in the case, was a proper charge and should have been given. — Gibson v. State, 89 Ala. 121. The other members of the court, however, hold that the charge was misleading, and for this reason was properly refused.
For the error pointed out, the judgment must be reversed and the cause remanded.
Reversed and remanded.