103 So. 717 | Ala. Ct. App. | 1925
The specific intent to kill is not essential in all cases of homicide, notably in a charge of manslaughter in the second degree. Including as it does all grades of homicide refused charge 1 was properly refused.
Refused charge 3 is as follows:
"The jury are instructed that the defendant is a competent witness in his own behalf, and they should not disregard his evidence, because he is the defendant and stands charged with a crime, but they should thoroughly and impartially consider and weigh his testimony by the same rule as that of other witnesses in this case."
The Attorney General in his brief insists that this charge is covered by the court's oral charge, but neither in the oral charge nor in the given charges do we find this charge even substantially covered. We are, however, of the opinion that the charge is misleading. To the mind of the average juror, it would seem to impart as matter of law, that the jury were bound to give to the *554 testimony equal weight as to that of any other witness. This is not a correct rule. While the jury may not capriciously disregard the testimony of the defendant when he elects to testify, the weight and influence any proof shall have on their deliberations is exclusively for them. As was said by Stone, C.J.:
"The law has neither declared, nor can it declare, any standard for weighing such testimony." McKee v. State,
82 Ala. 32 ,2 So. 451 ; Ex parte Warrick,73 Ala. 57 .
Refused charge 7 is covered in given charge 10 and in the court's oral charge. The correct rule of law with reference to the presumption of innocence and as to how long it was to continue was correctly given to the jury by the court in his oral charge. This presumption of innocence continues only to that point where the jury arrive at the conclusion from the evidence beyond a reasonable doubt that the defendant is guilty.
Refused charges 9 and 10 were both fully covered by given charges, and by the oral charge.
We find no error in the record, and the judgment is affirmed.
Affirmed.
