79 Ala. 23 | Ala. | 1885
The defendant was indicted for an assault with intent to murder William Croft. Under that indictment, lie might have been acquitted of the higher offense, which under our statute is made a felony, and convicted of the lesser offense, an assault, or assault and battery. The testimony was not in harmony, but none of it exonerated the defendant from all blame in provoking, or bringing on the difficulty. This is always a material inquiry, when self-defense is relied on. It is an important factor; for circumstances which would fully establish self-defense, if unimpaired by provocation given, are often rendered impotent, if the person setting up the defense himself provoked or brought on the difficulty.—DeArman v. The State, 71 Ala. 351; Storey v. The State, Ib. 329.
The first charge asked ignores the minor degree of the offense, and demands an acquittal on evidence which, at most, only requires an acquittal of the felony. An intent to kill may, perchance, not have been proved beyond a reasonable doubt, and yet the assault so clearly established as to require a conviction of the misdemeanor. This charge is also obnoxious to the criticism we make on the second charge.—Bryant's case, 76Ala. 33.
The second charge is faulty, in that it proposes to leave it for the jury to determine what would be a “legal excuse” for the shooting. What would justify or excuse one man in shooting another, is a question of technical, legal learning, which should be defined by the court, and not left to the jury.
The third charge asked is faulty in two respects. It ignores the question of provocation given by the accused, and it .equally ignores all other means of escape.—Lewis v. The State, 51 Ala. 1; Eiland v. The State, 52 Ala. 322; Cross v. The State, 63 Ala. 40; Mc Neezer v. The State, 63 Ala. 169.
The fourth charge was properly refused, if for no other reason, for the following clause contained in it: “and if they [the jury] have a doubt about the defendant’s guilt, then they must acquit the defendant.” Amere doubt does not require an acquittal. It must be a reasonable doubt. Mose v. The State, 36 Ala. 211.
The judgment of the Circuit Court is affirmed.
