58 Ala. 402 | Ala. | 1877
This cause was submitted on a motion, under the statute to amend the bill of exceptions, by evidence presented to this court. We have examined the affidavits of the learned and estimable judge of the City Court and of the counsel on both sides of the cause, and find that, in reference to the point over which the contestation is made, there is really no difference between them. In the course of his charge, covering the entire case, the judge said to the jury: “When an assault is made and resistance or a striking back is justified, yet, even here, when the striking back or resistance is made with a deadly weapon, and the weapon is used in a very cruel manner, not justified at all by the nature and the danger of the assault, the offense amounts to murder. A good definition of cruelty is, the infliction of great pain or
The point of the contention on the part of the judge is, that defendant did not except to the charge, on account of the omission from it, of the condition that death ensue from such cruel use of a deadly weapon, and did not in any manner call his attention to such omission. Herein the judge is evidently not mistaken. Counsel for defendant admit that they had not themselves then perceived that supposed defect. They were not aware of it, until they came to copy the notes of the entire charge, which the judge handed to them to be used in preparing the bill of exceptions. But it does not seem to us that such a circumstance is a matter of any im-
But while the exception was in that particular immaterial, it seems to us that it reached further than the mere definition of cruelty in the charge. It raised, also, the question of error or not in the instruction given, respecting the effect, as evidence of homicidal malice, — of cruelty on the part of a person assailed, in the manner of his slaying of the assailant. We are of opinion, therefore, that the part of the charge which the judge of the City Court admits he gave, but struck out of the bill of exceptions because not excepted to, so as to call attention to the omission mentioned, should be restored; and that the exception thereto now contained in the bill, should be stricken out, and the following be, instead thereof, inserted, to-wit: And defendant excepted to the definition of cruelty in the following charge, and also to so much thereof as explains the effect — as evidence .of malice — of the use, by one assailed, of a deadly weapon, in a cruel manner, against his assailant.
It is ordered that the bill of exceptions be amended accordingly-