Richardson v. State

| Ala. | Dec 15, 1875

STONE, J.

We find nothing in this record to require a reversal of the sentence of conviction. In the general charge, there is at least one error of expression, but no exception is taken to any part, or even to the whole of that charge. We have repeatedly held that we will not reverse for erroneous instructions to the jury unless there be exception reserved to such instructions. The reason is obvious. If exception be taken, the error, if any, may be cured by a correction of the erroneous ruling; or, adverse counsel may prefer to withdraw such ruling, rather than incur the hazard of a reversal. Johnson v. State, 29 Ala. 62" court="Ala." date_filed="1856-06-15" href="https://app.midpage.ai/document/johnson-v-state-6505804?utm_source=webapp" opinion_id="6505804">29 Ala. 62; Jones v. Jones, 42 Ala. 218" court="Ala." date_filed="1868-01-15" href="https://app.midpage.ai/document/jones-heirs-v-jones-administrator-6507487?utm_source=webapp" opinion_id="6507487">42 Ala. 218; Irwin v. State, 50 Ala. 181; Murphy v. State, 54 Ala.

This disposes of all the points raised on the general charge.

The qualification of the charge requested orally by defendant, and given by the court, asserts a correct legal proposition, and is no ground of error.—Mooney v. State, 33 Ala. 419" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/mooney-v-state-6506386?utm_source=webapp" opinion_id="6506386">33 Ala. 419; Morris v. State, 25 Ala. 57.

Two charges were asked by the defendant in writing— refused by the court, and exceptions reserved. The first of the two is free from fault, except in the last clause. The only deed charged in the indictment is rape. Yet, under the indictment, the defendant could be convicted of either rape, assault with intent to commit rape, or assault and battery. The charge assumes that if the jury are not convinced “ beyond a reasonable doubt that the defendant did the deed as charged, they must acquit.” This charge, if given, would have precluded the jury from convicting the defendant of either of the lesser offenses.—Martin v. Hill, 42 Ala. 275" court="Ala." date_filed="1868-01-15" href="https://app.midpage.ai/document/martin-v-hill-6507500?utm_source=webapp" opinion_id="6507500">42 Ala. 275.

The second charge asked • contains, as an element of its hypothesis, “that the subject of the rape is a woman of bad fame.” The bill of exceptions affirms that it contains “ all the testimony in the case.” It contains no evidence of the woman’s character or fame. This constituted the charge abstract, to the extent pointed out, and justifies its refusal. 1 Brick. Dig. 338, § 41.

The judgment of the circuit court is affirmed, and the sentence of the law must be executed.