Welch v. State

124 Ala. 41 | Ala. | 1899

McCLELLAN, C. J.

— The request for the affirmative charge for the defendant in this case was a palpable trifling with the court, the evidence of two witnesses for the State going directly and positively to establish every essential element of a most vicious and blood-thirsty assault with intent to. murder.

The second charge is confused and unintelligible in part, and in other part asserts the wholly untenable proposition that, to constitute an assault with intent to murder there must not only be malice, but also premeditated design. — Meredith v. State, 60 Ala. 441.

Before an acquittal can be had on the ground of self-defense, it must appear that the defendant was free from fault in bringing on the difficulty, not merely that he was reasonably free from fault as is hypothesized in the third charge refused to the defendant. — Dennis v. State, 118 Ala. 72. This charge may be open also to other objections.

The fourth charge refused to the defendant is bad for pretermitting the imminency of defendant’s peril and the absence of opportunity to retreat, and postulating instead thereof that he “struck in self-defense.” — Miller v. State, 107 Ala. 40; Rogers v. State, 117 Ala. 9.

Charge 5 refused to the defendant is-as follows: “A conviction 'should not be had upon circumstantial evidence, if positive evidence is attainable, or before the jury.” This is not the law; and. if it were, the charge has no place in a case like this, where the whole evidence is from the mouths of eye-witnesses to the occurrence and goes not circumstantially or inferentially but directly and positively to the details of the difficulty.

Affirmed.