Smith v. StateSmith v. State
In a prosecution for miscegenation, defendant‘s statements tending to show his feeling toward the woman with whom he was charged with having adulterous relations, and his actions relative to her, were admissible.
[Ed. Note.—For other cases, see Miscegenation, Cent. Dig. § 7.]
2.
Evidence having been introduced tending to show the illicit relations between defendant and the woman within the time and place covered by the indictment, the court properly allowed evidence of prior or subsequent cohabitation between the parties, though committed in a different county or state, to show intent.
[Ed. Note.—For other cases, see Miscegenation, Cent. Dig. § 7.]
3. Witnesses <wkey;>317(2)—Credibility—False Testimony—“Willfully False.”
A charge which failed to predicate the right to disregard entirely a witness’ testimony on the fact that she testified willfully falsely as to any material fact was improper; thе statement that if the jury believed from all the evidence that she swore falsely or willfully not being equivalent to willfully false.
[Ed. Note.—For othеr cases, see Witnesses, Cent. Dig. § 1081.]
4. Witnesses <wkey;>317(3)—Disregarding Testimony—False Swearing.
A witness’ false swearing, to give the jury the right to disregard entirely her testimony, must be as to some material matter.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1082.]
5. Criminal Law <wkey;>829(1)—Trial—Instructions—Repetition—Statute.
Under
[Ed. Notе.—For other cases, see Criminal Law, Cent. Dig. § 2011.]
BRICKEN, J.
[1, 2] The defendant was indicted under
Other rulings of the court on the evidence in this case have been carefully examined, and thеy appear to be free from error. The propositions involved were of minor or no importance to the issues in this case, and it appears that the rulings of the court in this connection clearly did not injuriously affect the substantial rights of the defendant. Refused charge 1 was the general charge in favor of the defendant. Under the evidence in this case, the defendant was not entitled to the affirmative charge; hence this charge was properly refused.
[3, 4] Refused charge 2 was bad, and therefore properly refused. This charge failed to predicate the right to disregard entirely the witness’ testimony on the fact that she testifiеd willfully falsely as to any material fact. The statement that if the jury believed from all the evidence that she swore falsely or willfully is not еquivalent to being willfully false. Besides this, the false swearing must be as to some material matter. Hamilton v. State, 147 Ala. 110, 41 South. 940; McClellan v. State, 117 Ala. 140, 23 South. 653; Seawright v. State, 160 Ala. 33, 49 South. 325. And, further the court, in its oral charge, fully covered the rule of law undertaken to be presented by charge 2.
[5] Refused charge 3 was fully covered by given charge 4, and also by the oral charge of the court; hence there was no error in the refusal of this charge.
Refused charges 4 and 6 were fully cоvered by the oral charge of the court.
Refused charge 5 was substantially covered by given charge 2, and also by the oral сharge of the court.
The refusal of a charge, though a correct statement of the law, shall not be cause for a rеversal on appeal, if it appears that the same rule of law was substantially and fairly given to the jury in the court‘s general сharge or in charges given at the request of parties.
The oral charge of the court in this case was a clear, full, sucсinct, and correct statement of the rules of law involved, and this charge, together with the written charges given by the court, are free from error, and therefore did not or could not injuriously affect the substantial rights of the defendant.
We find no error in the record, and the judgment of the circuit court must be affirmed.
Affirmed.
On Application for Rehearing.
Upon a reconsideration of this case on the defendant‘s applicatiоn for rehearing, we are of the opinion that written charge 4, refused to the defendant and referred to in the original opiniоn as having been substantially covered by the oral charge of the court, should have been given, and that its refusal by the trial court is еrror that will require a reversal of the judgment and the remandment of the case for another trial; as it appears from a further examination and consideration of the oral charge of the court that the same rule of law embodied in said charge was not, as was our first impression, substantially and fairly given to the jury in the court‘s general charge or in the charges given at the request of parties.
Reversed and remanded.