Olive v. State, 63 So. 36

Olive v. State

63 So. 36 | Ala. Ct. App. | 1913

THOMAS, J.

— This is the second appeal in this case —the former being reported in Olive v. State, 2 Ala. App. 77, 57 South. 66, where the judgment of conviction was reversed. On the subsequent trial the defendant was convicted of manslaughter in the first degree, and sentenced for five years. The only errors now urged are those alleged to- have been committed by the trial court in the refusal of certain written instructions requested by defendant, and it is not necessary to an understanding of the disposition we make of these rulings that the facts of the case be reviewed or set out.

Under a recent decision of our Supreme Court, made in the case of A. G. S. R. R. Co. v. Robinson, 62 South. 813, where the subject is fully discussed and the cases reviewed, it is not reversible error for the trial court to refuse charges like that set out in the first assignment of error. — A. G. S. R. R. Co. v. Robison.

Neither did the court err in refusing the affirmative charge requested by defendant; for even assuming, contrary to the truth, that inferences from the facts proved by the state did not at all contradict defendant’s version of the difficulty — he being the only eyewitness as *181to bow it happened and took place — and even assuming that he Avas free from fault in bringing on the difficulty, as he swore, and that he fired only under the conditions and circumstances testified to by him, it was still for the jury to say Avhether these conditions and circumstances Avere such as to create the necessity of taking the life of deceased in order for him (defendant) to save his own life, or his person from serious bodily harm, or a reasonable belief that such necessity existed. — De Arman v. State, 71 Ala. 351.

It is unnecessary to consider Avhether refused charge No. 16, made the basis of the third assignment of error, asserted a correct proposition of law or not, or whether if it did it was not faulty as being argumentative, since, even assuming that it was a good charge in every particular, there was no injury in refusing it, for the reason that the court affirmatively instructed the jury in writing at defendant’s request that “the un contradicted evidence in the case is that defendant did not provoke or bring on the difficulty,” Avhich was equivalent to charging that if the jury believe the evidence, they must find that the defendant did not provoke or bring on the difficulty. Therefore there could be no injury, if error, in refusing a charge asserting in effect, as said charge No. 16 did, that threats made by deceased could be considered by the jury in determining Avho brought on the difficulty.

For the same reason there could be no injury in refusing charge No. 20, set out in the fourth assignment of error. Besides, the charge is objectionable, if for no other reason, as attempting to single out and give undue prominence to the testimony of the witness named.

There was no error in refusing written charge numbered 22. The question of the degree of homicide of which the defendant is guilty is always a question for *182the jury, and not the court, when the evidence is such as to warrant the submission to the jury of the guilt or innocence of the accused.

Affirmed.