47 So. 300 | Ala. | 1908
The appellant was indicted for murder, and convicted of manslaughter in the first degree. There was no error in admitting the dying declarations of the deceased. He was shown to be in extremis, and the remark he made showed that he was conscious of the fact that he was about to die.- — Wills v. State, 74 Ala. 21, 25; Johnson v. State, 47 Ala. 9. The man of whom he was speaking was identified by the remark of the wife, asking him “What this man cut you for.” The question to the same witness, by the solicitor, “What was the question you say that you asked him?” was properly admitted, for the purpose of further identifying the party of whom the dying man was speaking.
The court cannot 'be placed in error for refusing to give charge No. 2, as the expression “guilty of his conduct” is unintelligible.
Charge No. 3, was properly refused. While it is true that a similar charge was approved in Smith v. State, 68 Ala. 424, 430, yet that case has been practically overruled by later cases, holding that such a charge is defective in leaving to the jury, without instruction, to determine the legal question as to what is self-defense.— Roden v. State, 107 Ala. 42, 58, 19 South. 37; Smith v. State, 130 Ala. 95, 98, 30 South. 432.
Charge No-. 4 was properly refused. The expression “to exclude all doubts of its correctness to a moral certainty” is not the equivalent of “all reasonable doubts,” but is calculated to mislead the jury to- the belief that the jury must he convinced beyond all doubt. ■
Charge No. 5, requested by the defendant, in addition to being unintelligible by reason of the expression “endanger in a reasonable mind,” is not substantially or materially different from charges 16 and 17, given at the request of the defendant. While it is true that this court may correct evident defects, in order to sustain the court below, yet that court cannot be placed in error for refusing to give a defective charge.
Charge 6, requested by the defendant, is substantially the same as charges 16 and 17, given at the request of the defendant. Consequently there was no error in refusing to give it.
The judgment of the court is affirmed.