Townsend v. State, 90 So. 58

Townsend v. State

90 So. 58 | Ala. Ct. App. | 1921

The defendant was indicted for murder in the first degree, was tried and convicted of manslaughter in the first degree, and in accordance with the verdict of the jury was duly sentenced to imprisonment in the penitentiary for five years.

The court refused the following charge requested in writing by defendant:

"If the jury, upon considering all the evidence, have a reasonable doubt of defendant's guilt arising out of any part of the evidence, they must find the defendant not guilty."

This charge asserts a correct proposition of law and should have been given. It is identical in every respect to charge No. 44 in the case of Russell v. State, 201 Ala. 572,78 South, 916, where the Supreme Court expressly held its refusal was error. It has been approved in many cases heretofore. Turner v. State, 124 Ala. 59, 27 So. 272; Hunt v. State, 135 Ala. 1,33 So. 329; Walker v. State, 117 Ala. 45, 23 So. 149; Forney v. State, 98 Ala. 19, 13 So. 540; Hurd v. State,94 Ala. 100, 10 So. 528; Prince v. State, 100 Ala. 144,14 So. 409, 46 Am. St. Rep. 28; Henson v. State, 112 Ala. 41,21 So. 79; Bardin v. State, 143 Ala. 74, 38 So. 833. In each of these cases and numerous other cases unnecessary to cite it has been held that the refusal of this identical charge is error. We feel sure that the learned trial judge in refusing this charge labored under the impression that it had been covered by the oral charge or by other given charges requested by the defendant. A careful examination into this question, however, fails to disclose that the propositions of law contained in this charge had been thus fairly and substantially covered, though it clearly appears that all of the other charges refused to the defendant were in substance and effect stated either by the oral charge or given by the court in the written charges at request of defendant.

The rulings of the court upon the testimony were free from error. As to Eva Humphrey's testimony, it was competent to show her bias or interest for or against the defendant, and the fact that the state undertook to do so by the introduction of the evidence offered for this manifest purpose was clearly permissible and the court's ruling thereon free from error. Byrd v. State, 17 Ala. App. 301, 84 So. 777. This testimony *243 and the manner of its introduction was also permissible for the purpose of impeaching the witness.

For the error pointed out, the judgment of the circuit court is reversed, and the cause remanded.

Reversed and remanded.