Smith v. State, 45 So. 626

Smith v. State

45 So. 626 | Ala. | 1908

ANDERSON, J.

Without determining whether or not charge 14 properly defined murder in the first degree, as applicable to the facts in the case at bar, it also attempted to define murder in the second degree, and as to which it was erroneous and misleading. It is not necessary that there was an intent to kill to constitute murder in the second degree. It is sufficient if the defendant voluntarily set in motion or applied an unlawful force from which death ensued, however free the action may be from actual purpose to kill. — Lewis v. State, 96 Ala. 6, 11. South. 259, 38 Am. St. Rep. 75; Bob v. State, 29 Ala. 20 (this last case was in part overruled in the case of Henry .v. State 33 Ala. 389, but not on this point); section 4854 of Code of 1896; Kerr on Homicide, § 29. The trial court did not err in refusing charge 14, requested by the defendant.

There was no error in refusing charge 15, requested by the defendant. — Wilson v. State, 128 Ala. 17, 29 South. 569, and cases there cited.

The trial court did not err in refusing charge 30, requested by the defendant. If not otherwise faulty, it was misleading by having the word “with” between “him” and “a blow.” It requires the jury to believe that defendant struck the deceased “with a blow,” and the indictment avers and the proof shows that death was produced by striking the deceased with a “fence rail.”

*35The trial court will not he put in error for refusing charges 31, 32, 33, and 34, requested by the defendant. They each pretermit the fact that the act was unlawful. There may have been a positive intent to kill, or a voluntary act of violence, on the part of the defendant; yet it would not be manslaughter in the first degree unless unlawfully done. One may have a positive intent to kill or strike a violent blow in self-defense. Moreover, each of the charges predicates manslaughter, not upon a killing alone, but upon a blow from which “ordinarily death or great bodly harm would result.There can be no manslaughter unless death actually resulted. Serious bodily harm is not enough. It is true the latter phrase is used in the books in discussing the intent; but there the abstract proposition is dealt with and not charges, and when it comes to charges they are erroneous in defining the different degrees of homicide upon serious bodily harm, as death is essental to a homicide. It may be that the omissions and additions discussed rendered the charges more favorable to the state; but this fact will not put the trial court in error for refusing them. It may be that a party against whom erroneous charges are given cannot complain because too favorable to them, and the trial court will not, for that reason, be reversed. But we will not reverse the trial court for refusing-charges that are not proper, although the defect, way be in favor of the party against whom they are asked. We are aware of the fact that the charges adopt the language of the books in defining intent, manslaughter, etc.; but there is a distinction between discussing an abstract proposition and in dealing with specal charges.

Charge 35, refused to the defendant, whether good or bad, was fully covered by given charge No.-2.

A majority of the court are of the opinion that the trial court did not err in refusing charge 23; that it was *36misleading, for the use of the word “aforethought” as applied to murder in the second degree; and consider the case of Wilson v. State, 128 Ala. 17, 29 South. 569, an authority in support of their conclusion. Justices Dow-dell and Denson agree with the writer in the opinion that the charge asserts the law and that the trial court erred in refusing same. — Ethridge v. State, 141 Ala. 29, 37 South. 445; Perry v. State, 43 Ala. 21; Fields v. State, 52 Ala. 348; Clark’s Manual § 469; Stoball's Case, 116 Ala. 454, 23 South. 162.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Haralson, Simpson, and McClellan, JJ., JJ., concur. Dowdell, Anderson, and Den-son, JJ., dissent.