69 So. 354 | Ala. Ct. App. | 1915
The witness Barton during his examination testified without objection that he was foreman of the cardroom of the Anniston Manufacturing Company, and that, when he came to Anniston and entered the employ of that company in the capacity of foreman, the defendant was working there, and that he discharged the defendant on the 10th of September, and the difficulty in which the defendant cut the witness occurred on the 19th of September.
When this exception was reserved, the court stated to the jury: “That he could not recall making the statement to the jury to which counsel had just excepted; that he didn’t think he had made the statement, but had meant to state that such was-the contention of the’solicitor ; that, if the court had made the statement,.the court
We have carefully read the oral charge of the court, and it does not contain the identical statement set forth in the exception, but what the charge stated in this respect was: “Now, the evidence in this case tends to show that this defendant made an assault on this man Barton, with a knife, by cutting him in the neck in a serious way, because Barton had discharged him from the mill:”
And that immediately following and in the same connection the charge states: “The evidence that defendant offers is that, while he was peacefully in the streets, Barton approached him, and without any preliminary, and without any reason, so far as the evidence shows, began to abuse him in a most insulting way, and assaulted him by striking him and chasing him back over some distance, striking him with one hand, and with the other hand in his pocket as if to draw a weapon, and it was only after he had been struck and threatened and chased around that he drew his knife and cut Mr. Barton.”
. By comparison of the charge of the court with the statement in the exception, it is apparent that there is a very material difference between what the court said in the charge and what is stated as the basis of the exception, and therefore the exception is not sustained.
Furthermore, the statute provides: “The court may state to the jury the law of the case, and may. also state the evidence when the same is disputed, but shall not
The statute authorizes the court to state the evidence and its tendencies to the jury. The charge of the court, when construed as ,a whole, merely states the theories of the parties and the tendencies of the evidence, and the contention that the court charged upon the effect of the evidence is untenable.—Hawes v. State, 88 Ala. 71, 7 South. 302; Tidwell v. State, 70 Ala. 33; 1 Bish. Cr. Pr. § 979; Dennis v. State, 112 Ala. 64, 20 South. 925; Harris v. State, 96 Ala. 24, 11 South. 255.
We find no error in the record, and the judgment of the city court will be affirmed.
Affirmed.