| Ala. | Nov 15, 1902
There was evidence tending to show that the wounds made on the deceased, and from which -dea tli resulted, were incised wounds. Stinson, a witness for the Státe, testified that the defendant owned a "barlow knife, but that he had not seen him with it on the day of the killing, nor on the day previous; that he had borrowed the knife from the defendant, and that he saw a knife on the preliminary trial, which was the knife he had seen the defendant with. This evidence was objected
The confessions of the defendant made to the officer Patton, who arrested him, were shown to have been made voluntarily, and were, therefore, properly admitted.— Calloway v. State, 103 Ala. 27" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/calloway-v-state-6515650?utm_source=webapp" opinion_id="6515650">103 Ala. 27; McElroy v. State, 75 Ala. 9" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/mcelroy-v-state-6511802?utm_source=webapp" opinion_id="6511802">75 Ala. 9-13, and authorities there cited.
There was no error in admitting the testimony of the witness Patton that the defendant admitted on the preliminary trial that the knife there shown in evidence was' the defendant’s.. — Ezell v. State, supra; Mitchell v. State, supra.
The portion of the oral charge of the court to. the jury, to which the defendant excepted, correctly stated the law. In Hull v. State, 79 Ala. 33, it is said: “It is sufficient, if the substance of the charge be proved, without regard to the precise instrument used. Though the indictment charges a particular weapon, the averment is substantially proved, if it be shown that some other instrument was employed, which occasions a wound of the same kind as the instrument charged, and- the same consequences naturally follow.” — State v. Fox, 1 Dutcher 566; State v. Smith, 32 Me. 369" court="Me." date_filed="1851-01-21" href="https://app.midpage.ai/document/state-v-smith-4928833?utm_source=webapp" opinion_id="4928833">32 Me. 369; Rogers v. State, 50 Ala. 102" court="Ala." date_filed="1874-01-15" href="https://app.midpage.ai/document/rodgers-v-state-6508620?utm_source=webapp" opinion_id="6508620">50 Ala. 102; 1 Bish. on Crim. Proced., § 514; 1 Arch. Cr. P. & Pl. 787.
There being evidence from -which the jury might infer the existence of the ingredients of murder in the first degree, written charges 1, '2, and 3 requested by the defendant were properly, refused. Written charge No. 4 requested by the defendant was properly refused for the reasons stated above as to the correctness, of the portion of the oral charge of the court, which wrns excepted to' by the defendant. Although the jury might not believe' •that the'cutting was done with a knife, still if they be-' lieve it was done by the defendant with am instrument of like kind, this would be sufficient to sustain the charge
We find no error in the record, and the judgment of the court will be affirmed.