73 So. 200
Ala. Ct. App.
1916
EVANS, J.

(1) Dеfendant was convicted of manslaughter in the first degree, and appeals. Appellant’s first insistence is that the triаl court erred in overruling his demurrers. These went to the question of definiteness and certainty in the allegation of meаns by which death was effected, to wit, that deceased was killed “by striking her with a stick.” A similar insistence was made in Johnson’s Case, 183 Ala. 79, 84, 63 South. 163, 164. The court said: “There are many kinds of knives, sticks, and stones, some of which are not considered weapons; but under the laws of this state indictments which charge murder with a ‘knife,’ ‘stick,’ or ‘stone,’ without further particularizing the instrument, are sufficient. An indictment which properly charges murder by means of a certain instrumentality is sufficient if it specifies the instrumentality by its generally accеpted name.”

*314 Code, § 7132, declares the Code forms of indictment to be sufficient in all cases to which they are applicable, and “in other cases, forms may be used as near similar as the nature of the case and the rules prescribed in this chapter will permit.” The form prescribed for manslaughter in the first degree, ‍‌‌‌​​​‌​​​‌​‌​​​‌‌​​‌​​​‌​​‌​‌‌​‌‌‌​‌‌‌​​​​​‌‌‌‌‍in describing the instrumentality employed in effecting death, uses the phrase as in the instant case, “by striking him with a stick;” and the form in murder (section 7161, No. 76) emplоys the phrase, “by striking him with an iron weight.” We do not think there was any merit in the demurrers.

(2) It is next insisted that the court erred in not excluding the remarks of the solicitor in his argument to the jury to which exception was seasonably reserved and a motion madе to exclude. The allusion of the solicitor was to an historical fact used arguendo to illustrate his point. We do not think its recitation prejudicial error. — Cross’ Case, 68 Ala. 476, 482, 483; Childress’ Case, 86 Ala. 77, 86, 5 South. 775; 12 Cyc. 575 (v).

(3) Counsel argue at some length that the deceased was a sickly, delicate woman, and that the state failed to show that the blow inflicted by defendant was the cause of her death. The state’s testimony, as given by Mamie Zeigler, an eyewitness, was to the effect that defendant struck deceased over thе head with a piece of green stovewood; that immediately deceased sank to the ground and presеntly stretched out unconscious, remaining so for some time. This, was about 1 o’clock p. m., and the deceased died the following day at about 7 a. m. While it would appear that the blow on the head was the sole efficient cause of death, it need not have been; even if it was only a partial cause or contributing factor that aсcelerated her death, defendant would, in the eyes of the law, have been none the less guilty.— Tidwell’s Case, 70 Ala. 33, 45; Winter’s Case, 123 Ala. 1, 11, 26 South. 949; McDaniel’s Case, 76 Ala. 1; Daughdrill’s Case, 113 Ala. 7, 34, 21 South 378.

Several written requests to charge were refused to appellant. We treat ‍‌‌‌​​​‌​​​‌​‌​​​‌‌​​‌​​​‌​​‌​‌‌​‌‌‌​‌‌‌​​​​​‌‌‌‌‍them seriatim as they appear in appellant’s assignments of error.

Charge No. 1 (assignment 3) was the general affirmative charge and properly refused.

(4) Charge No. 6 (assignment 4) hypothesized an acquittal of murder in either degree and manslaughter in the first degree upon.the jury’s, finding а lack of a “specific” intent to kill; In *315 Daughdrill’s Case, supra (charge 10), McClellan, C. J., said: “Charge 10 refused to the defendant is an effort to add qualifications or characteristics to the intention to kill, necessary in murder in the first degree, which could tend only to confuse and mislead the jury. There is no necessity or occasion for ‍‌‌‌​​​‌​​​‌​‌​​​‌‌​​‌​​​‌​​‌​‌‌​‌‌‌​‌‌‌​​​​​‌‌‌‌‍requiring the triers of fact, when they find that a dеfendant had in his mind an intention, resulting from thinking upon the matter for even so brief a time, to take life, to go further into metaphysical inquisition to determine whether such intention was ‘clear’ or was ‘specific.’ ”

(5) Charge No.'9 (assignment 3) was as follоws: “The elements of murder as I have given to you must be shown by the evidence beyond a reasonable doubt beforе you can find the deft, [sic] guilty.”

Where a written request to charge is dependent upon another charge, either oral or written, to complete its sense or for the principle sought to be announced, it is so involved and its tendеncy to confuse and mislead such that the court will not be put in error for refusing such deficient written request to chargе. Where the oral charge is not set out, as is the case here, we have no data from which it is possible to rеview the charge.

(6) Charge No. 8 (assignment 6) is obviously incorrect and involved. By the employment of two negatives the jury is instructed diametrically opposite to what was evidently intended. The result is that the charge instructed ‍‌‌‌​​​‌​​​‌​‌​​​‌‌​​‌​​​‌​​‌​‌‌​‌‌‌​‌‌‌​​​​​‌‌‌‌‍that the jury could nоt convict if the deceased died of the effects of the blow. Aside from this, the charge was faulty in that a conviсtion could have been had if the blow accelerated the deceased’s death.

(7) Charge No. 4 (assignment 7), а charge instructing the jury that, if they had a reasonable doubt of any essential element of unlawful homicide, they could not find the defendant guilty, was vicious, for that it referred a question of law to the jury, as it left to them to say what were the “essential elements of unlawful homicide.” — Brooks’ Case, 8 Ala. App. 277, 291, 62 South. 569; Whatley’s Case, 144 Ala. 68, 76, 39 South. 1014.

(8) Charge No. 5 (assignment 8) also refers a question of law to the jury, in that it leaves to them to say what are the material averments of the indictment and whether such material averments were proven “as required by law.”

(9) Charges Nos. 6a and 7 (being assignments 9 and 10, respectively) ‍‌‌‌​​​‌​​​‌​‌​​​‌‌​​‌​​​‌​​‌​‌‌​‌‌‌​‌‌‌​​​​​‌‌‌‌‍have been condemned in several cases. In Fon *316 ville’s Case, 91 Ala. 39, 44, 8 South. 688, 690, Coleman, J., observed: “They (charges 1 and 3) are misleading, and each invades the province of the jury. * * * If there is еvidence tending to show the guilt of the defendant, and also evidence tending to exculpate him, it is for the jury to detеrmine from all the evidence whether they are legally satisfied of the defendant’s guilt, and not for the court to instruct thеm what part of the evidence they shall credit and what conviction such evidence shall produce on thеir minds, or which theory they shall accept.”

See, also, Gibson’s Case, 91 Ala. 64, 9 South. 171; Toliver’s Case, 94 Ala. 111, 10 South. 428; Johnson’s Case, 102 Ala. 1, 18 16 South. 99; Smith’s Case, 88 Ala. 23, 7 South. 103; Compton’s Case, 110 Ala. 24, 35, 20 South. 119; Terry’s Case, 13 Ala. App. 115, 69 South. 370.

The record is free from prejudicial error, and the judgment below is affirmed.

Affirmed.