Outler v. State

41 So. 460 | Ala. | 1906

TYSON, J.

The defendant’s conviction was not dependent upon the testimony of witness Terry. Indeed, under the testimony adduced through other witnesses, who saw the shooting ,the jury might well have found the defendant guilty. If it be true that defendant shot deceased while he was running, after getting possession of 1ns pistol, no matter who was at fault in bringing on the difficulty in which the pistol was wrenched by defendant from the hands of the deceased, he could not be guiltless. It was with respect as to what occurred between deceased and defendant prior to the scuffle between them over the pistol that Terry’s testimony was uncorroborated. Charge 1A, we think, was calculated to mislead the jury, if not otherwise bad. It is true that in Jackson v. State, 136 Ala. 22, 34 South. 188, we held that a charge, similar to this one in all respects except in that one, the willful and malicious falsity of the wit-ness’ testimony was predicated upon a material part' of his testimony and should have been given. But in that case the conviction was dependent solely upon the witness ’testimony with which the charge dealt.

Charge 11. was an argument. — Mathews v. State, 100 Ala. 46, 14 South. 359, and cases there cited.

Charges A, B, C, and F were faulty, if not otherwise bad in omitting the proper postulation as to defendant’s freedom from fault in bringing on the difficulty.

The defendant’s guilt, as charged, under the evidence, was clearly for the determination of the jury. Charges D, E, and C were therefore properly refused.

Charges I and J made defendant’s acquittal turn upon the finding of one juror.

Affirmed.

Weakley, C. -T., and Simpson and Anderson, JJ., concur.