43 So. 197 | Ala. | 1907
Indictment- for and conviction of assault with intent to murder.
Refused charges numbered 5, 6, 12, 19, and 26 should, have been given, and their refusal is error. These charges are sanctioned in Hunt’s Case, 135 Ala. 1, 33 South. 329; Turner v. State, 124 Ala. 59, 27 South. 272; Gilmore’s Case, 99 Ala. 154, 13 South. 536; Rogers v. State, 117 Ala. 192, 23 South. 82. Refused charge numbered 25 -was properly refused.:—Nevill v. State, 133 Ala. 99, 32 South. 596. Refused charge numbered 9 is a sub
Befused charge numbered 33 is bad, for the reason, among others, that there is no evidential presumption, or one of law, that the assault was the result of sudden passion, and without malice or previous intent. When there is a want of evidence of formed design, or the contrary, the presence of the essential elemnts to constitute murder must be determined by the jury from all the facts and circumstances in the case.—Sloan's Case, 95 Ala. 22, 11 South. 14.
Befused charge numbered 22 is as follows: “The absence of sufficiently satisfying evidence before the jury may offer ground for reasonable doubt of defendant’s guilt.” This charge was well refused, since it substitutes the word “offer” for the word “afford.” The writer is of the opinion that, if correctly worded, the charge should have been refused, because, among other reasons, it is infidenite and uncertain, in that it.does not hypothesize of what the jury must be “sufficiently satisfied,” and, besides, assumes the absence of evidence.
Befused charge 21 Avas properly so treated, since it was abstract, and since motive can never justify an assault with a weapon.
Befused charges 1, 3, and 11 have been approved by this court, and their refusal was unwarranted.
The errors pointed out require the reversal of the judg" ment and the remandment of the cause.
Beversed and remanded.
