126 So. 604 | Ala. Ct. App. | 1930
The homicide here complained of grew out of a difficulty between the defendant and deceased at a lonely place on the public road at about eleven o'clock at night. No one else was present at the time of the killing and therefore the statement of defendant is the only direct testimony as to what took place. There were certain facts and circumstances, aside from the testimony of defendant, tending to shed light on the issues and from which the jury was authorized to draw inferences tending to sustain the state in its contention that the homicide was unlawful, and that it was done with malice. It is conceded that the homicide was committed; that the defendant struck the fatal blow; that in doing so he used an automobile pump (a deadly weapon), and that the killing was unlawful, unless the defendant may be justified under his plea of self-defense. But, it is seriously insisted that the facts proving the killing rebuts the presumption of malice, which is ordinarily presumed from the use of a deadly weapon, and that the jury should have been so instructed affirmatively. Malice, design, and motive are as a rule but inferential facts. They are inferred from facts and circumstances positively proven. If direct positive proof of them were required it could rarely be given. Hadley v. State,
We have carefully considered refused charges 16 and 27. These charges omit a consideration of the doctrine of retreat and it is insisted by appellant that this case comes under the influence of those cases which hold that where the evidence discloses a situation where retreat was apparently impossible without apparent increase of defendant's peril, the hypothesis of the doctrine may be omitted in a charge. Such a rule is recognized in Madison v. State,
The substantive law included in charges 13, 14, and 17, were fully covered by the court in his oral charge. *437
In connection with the testimony of Doctors Ray and Jones there was introduced in evidence a diagram of a human head indicating the location of the wounds on the held of deceased. This diagram was made by the two doctors in collaboration, and who had examined the head and wounds of deceased. There was no error in admitting the diagram in connection with and as illustrative of the testimony of these two expert witnesses. 4 Mitchies Digest 203 Par. 276.
The issues were fairly presented to the jury, the evidence on all questions was sufficient to sustain the verdict, and the motion for new trial was properly overruled.
There is no error in the record and the judgment is affirmed.
Affirmed.