McCutcheon v. State

59 So. 714 | Ala. Ct. App. | 1912

PELHAM, J. —

The trial of the defendant on an indictment charging murder resulted in conviction of manslaughter. No question is presented upon this appeal, except the ruling of the trial court in refusing a number of written charges requested by the defendant. Among the number refused is charge designated in the bill of exceptions as charge M. This charge, as it appears in the record, has been twice approved by the Supreme Court (Bluitt v. State, 161 Ala. 14, 49 South. 854; Bluitt v. State, 151 Ala. 41, 44 South. 84), and the principles of law embodied in it have been approved many times. The charge is not abstract as applied to this case, for while no threats were proven to have been made prior to the time the difficulty arose which resulted in the killing, it was shown by the evidence of the defendant and two or three of his witnesses that the deceased threatened the defendant’s life just prior to or at the time of advancing upon him, and that the defendant threw the rock which struck deceased and caused his death subsequent to the threats. The defendant had the right to interpret the conduct of the deceased in advancing on him in the light of this threat. The appropriateness of the other principles of law embodied in the charge as applicable to this case is apparent. This charge is not substantially covered by any given charge, and its refusal will require a reversal of the case.

It is not necessary to consider in detail the long list of refused charges. They may or may not enter into the consideration of another trial, and do not involve any new proposition or principle of law, but are along the line of the general run of charges in such cases that have been so often discussed as to need no special consideration. We call attention, however, to refused charge F, which was approved in Griffin’s Case, 150 Ala. 49, 43 South. 197. Yet the word “supposition” used in a charge is not to be commended. — Baldwin v. State, 111 Ala. 11, 20 South. 528; Yarbrough v. State, 105 Ala. 43, 16 South. 758; Garrett v. State, 97 Ala. 18, 14 South. 327. Refused charge L is the same charge as approved by the Supreme Court in Fowler’s Case, 155 Ala. 21.

Reversed and remanded.