71 Ala. 1 | Ala. | 1881
The general charge of the court, on the request of the defendant, was given in writing. An exception to two sentences of the charge was taken. These, wholly disconnected from the body of the charge, are now presented for review, without a statement of all, or the substance of all the evidence which was before the jury. The objection urged in support of the first exception is, that the court assumed the only conflict in the evidence was between Sims’ testimony and that of the other witnesses. This is not the proper construction of the charge, or sentence of it, recited in the bill of exceptions. The cotn’t referred to the argument of counsel, manifestly, in which it had been urged there was a conflict between the evidence of Sims and the other witnesses, and submitted for the consideration and determination of the jury, whether there was such conflict, and, if it existed, refers to them the credibility of the witnesses. Tibs was within the line of the duty of the courts
The second sentence of the charge is not offensive to the objection taken to it. There is no invasion of the province of the jury — no assumption that any fact was proved, nor the withdrawal from the consideration of the jury of evidence tending to establish any fact.
If there had been any evidence tending to show that the killing was unintentional, though unlawful, the first instruction requested could have been given properly. Thé evidence showing that the killing was voluntary and intentional, the instruction was abstract, and properly refused. So, if there was any evidence, however slight, tending to support the hypothesis on which the other instructions requested are founded, it may be they should have been given. But in the absence of all evidence having a tendency to show that at the time of the killing the accused was in imminent peril of life, or grievous bodily harm, or of the existence of circumstances creating in his mind a reasonable belief of such peril, leaving out of view that he appears to have provoked the difficulty, these instructions were abstract. The court never errs in refusing instructions which are abstract. If given, the only effect following them would be to mislead the jury, unless additional and explanatory instructions were given.
Affirmed.
