67 So. 735 | Ala. Ct. App. | 1915
No brief has been filed on behalf of the defendant going to the merits of any question .presented by the transcript, but the main proposition which seems to have been insisted upon by the defendant in the trial court, and Which is presented for review on the record in several forms, goes to the ruling of tbe trial court that it was within the province of the jury to. find the defendant guilty of an assault with intent to murder, or an assault and battery, although the indictment against him and upon which he was being tried charged murder in the first degree. -
The lesser charge was included in the greater, and, although it might be true that, where the uncontradict-
The photograph of the person alleged to have been slain, taken some time before the difficulty in question, showing him Avith a drawn pistol, that Avas offered in evidence by the defendant, could have had no legitimate tendency to prove or disprove any issue before-the court, and the court properly sustained the solicitor’s objection to its introduction in evidence. Other rulings of the court on the evidence are manifest without error and require no particular mention or discussion.
The general charge requested by the defendant was properly refused, and the question of the defendant’s
Charge 13 requested by the defendant in writing was covered by written charge 12 given at his request.
The evidence without conflict shows that the defendant shot and inflicted serious bodily harm on the person alleged in the indictment to have been slain, and, if the .evidence fell short of showing death as a result of the wound, there was an abundance of evidence to support a finding that the act was committed in an attempt to commit murder with an intent to dó so. The reliance of the defendant was based on showing that he acted in self-defense. Refused charges 14, 18, 19, and 27 each ignore the indispensable element of retreat necessary to the defense of one who would seek to excuse a homicide or an attempt to commit one. As applied to a nonfelo-nious assault, these charges, under the .evidence of this case,- are abstract, and bad in failing to negative that the defendant fought willingly at the inception- of the difficulty. The defense in an assault and battery case would not be complete, although the defendant did not provoke the difficulty, if he fought willingly.—Howell v. State, 79 Ala. 283; Harris v. State, 123 Ala. 69, 26 South. 515.
Charge 15 fails to hypothesize defendant’s freedom from fault in bringing on the difficulty.—Gilmore v. State, 126 Ala. 38, 28 South. 595; Rose v. State, 144 Ala. 114, 42 South. 21. Besides, it is otherwise faulty.
Charge 25 is patently bad. Under its instruction, if the jury did not believe the defendant guilty of murder in the second degree, or manslaughter, they could not find him guilty of an assault with intent to murder.
From what has been said, it will appear without further discussion that there was no error committed in the refusal of the other written charges set out in the bill of exceptions as refused to the defendant.
We find no error in the record, and the judgment appealed from will be affirmed.
Affirmed.