47 So. 302 | Ala. | 1908
The appellant in this case was convicted for the crime of murder in the second degree. There was no error in overruling the defendant’s objection to the juror Blackwell, because of the mistake in the middle initial of his name. — Kimbrell v. State, 130 Ala. 40, 30 South. 454; Martin v. State, 144 Ala. 8, 40 South. 275.
The court erred in not sustaining the objections to the testimony of the witness C. C. Isbell, and to the question by the solictor to him and the answer thereto, as the testimony sought and given was hearsay.
There was no error in permitting the witness Murry to testify that he saw only a little rock, nor in overruling the objection to the question by the solicitor, “Were there any rocks about the place?” The witnesses had testified to the throwing of a rock by the deceased, and it was relevant to show whether or not there were any rocks about the place.
There was no error in the oral charge given by the court. — Reese v. State, 135 Ala. 13, 33 South. 672; Skipper v. State, 144 Ala. 100, 42 South. 43; Jackson v. State, 77 Ala. 18.
There was no error in the refusal of the court to give charge No. 1, requested by defendant. The inability to safely retreat, and; other elements of self-defense, must be proved by the defendant, before the burden is placed upon the state to prove that the defendant was the aggressor. — Gibson v. State, 89 Ala. 121, 8 South.
Charge No. 2, requested by the defendant, while otherwise defective, fails to hypothesize the imminency of the peril. — Mitchell v. State, 133 Ala. 66, 72, 32 South. 132; Evans v. State, 109 Ala. 12, 22, 19 South. 535.
Charge No. 3, requested by the defendant, besides being argumentative, does not hypothesize a sufficient provocation. — Holmes v. State, 88 Ala. 26, 7 South. 193, 16 Am. St. Rep. 17.
Charge No. 4, requested by the defendant, was properly refused. Besides being argumentative, the fact that a man of ordinary self-control might not have resented the provocation would not change the fact that the defendant actually did provoke the difficulty.
Charge No. 5, requested by the defendant, asserts a correct proposition of law, and should have been given.
Charge No. 6, requested by the defendant, was properly refused. The defendant must be free from fault— not reasonably free — in order to invoke the doctrine of self-defense. — Crawford’s Case, 112 Ala. 5, 29, 21 South. 214.
Charge No. 7 was properly refused. It was involved and confusing.
Charge No. 8 was properly refused. Besides being argumentative, the fact that the deceased does not exercise proper self-control does not make him the aggressor in the fight.
• Charge No. 10’ was abstract as to manslaughter in the second degree, and was properly refused.
Charge No. 11 was properly refused. — -Crawford v. State, 112 Ala, 5, 12, 33, 21 South. 214.
Charge No. 12 asserts a correect legal proposition, and should have been given. — Smith v. State, 86 Ala. 28, 5 South. 478.
Charges Nos. 12% and 17 were properly ¡refused. It is not necessary, in order to make the defendant the aggressor in bringing on the difficulty, that he said or did anything that would justify resentment by the deceased. He must be entirely free from fault in bringing on the difficulty, in order to be allowed to claim self-defense. “An inquiry, no matter how far from angry or irritating in tone its expression may be, in its very nature and surroundings, is calculated to provoke a difficulty.” — Jackson v. State, 81 Ala. 33, 35, 1 South. 33.
Charge 13 is elliptical, and was properly refused.
There was no error in the refusal to give charges Nos. 14 and 16. They ignored the possibility of the jury’s finding the defendant guilty of some loAver grade of offense than that “charged in the indictment.”
The court could not be placed in error for refusing to give charge No. 15, as it is unintelligible, in stating that the. “right to strike in self-defense revised.”
Charge No. 18, besides being elliptical, in omitting the word “is” before “imminent,” does not sufficiently hypothesize the serious nature of the danger to his person.
The judgment of the court is reversed, and the cause remanded.