82 So. 628 | Ala. Ct. App. | 1919
The defendant was indicted for murder in the first degree. He was tried and convicted of manslaughter in the first degree, and was duly sentenced to imprisonment in the penitentiary for a term of five years. From this judgment of conviction, he appeals.
There was but one exception reserved to the ruling of the court on the evidence. This ruling was clearly without error, and the question was not objectionable on the grounds stated. The question as propounded may have been leading, but it has been often held that the trial court is authorized to permit a leading question. Moreover, this ground of objection was not made.
The only remaining exception as shown by the record relate to the action of the court in refusing several written charges requested by defendant. Of these charges, the one numbered 6 was properly refused. It was covered by the oral charge of the court, and it is involved; and under the evidence the question as to whether the assault made by the deceased on the defendant was a murderous assault so as to relieve him of the duty to retreat was a question for the jury. Matthews v. State,
Refused charge 8 also omits any reference *4 to the duty of retreat on the part of the defendant, and also the requirement that the defendant must have been free from fault in bringing on the difficulty. Its refusal was not error.
Refused charge 14 is confused and involved as a result of the use of the phrase "reasonably doubtful as to the proof in this case." Moreover, it was covered by given charge "B," and by the oral charge of the court.
Refused charge 17 was argumentative and clearly abstract, in that there was no evidence upon which it could be based, as there was no testimony which tended to show that the defendant merely answered one verbal insult with another; it was properly refused.
Charge 18 was properly refused. This charge omits any reference to the doctrine of retreat and freedom from fault. The propositions of law undertaken to be embodied in this charge were fully covered by given charges 21, 26, 28 and 33; also by the oral charge of the court.
Refused charge 27 was bad, and was therefore properly refused. This charge has been condemned by the Supreme Court in Pippin v. State,
No other ruling of the court is brought in question, and, as no error appears in the record, the judgment of conviction in the circuit court is affirmed.
Affirmed.