Wright v. State , 148 Ala. 596 ( 1907 )

ANDEBSON, J.

— There was no error in permitting the state to prove by the physician attending the injured party, his condition, the character of the wounds, and that some of them were sewed up by him. This evidence related to the character of the wounds inflicted, and was a question to be considered by the jury in ascertaining the intent with which they were inflicted. So, too, it was competent for the state to show how long the assaulted party was in a hospital and was confined to his bed as a result of said wounds. For the same reason the state was properly permitted to show that Harris was bloody after the fight.—Brown v. State, 142 Ala. 287, 38 South. 268; Meredith v. State, 60 Ala. 441; Jackson v. State, 94 Ala. 89, 10 South. 509.

The witness Steadman clearly showed upon cross-examination that what the defendant told him about trouble at Hilliard was in no sense a threat against Harris, and should have been excluded.

There was no error in giving charges 1, 2, and 4, requested by the state.

The trial court erred in giving charge 3, requested by the state. It pretermitted an intent on the part of the defendant to take life, a. necessary element of the offense.

Charge 14, requested by the defendant, was properly refused. It is just like a. charge that was condemned in the case of Goodwin v. State, 102 Ala. 87, 15 South. 571, and unlike the one held good in the Kennedy Case, 140 Ala. 1, 37 South. 90, in that it asks for an acquittal and pretermits the defendant’s duty to escape, if he could do so without increasing his peril. An acquittal was not asked in the Kennedy Case, supra.

Charge 16, requested by the defendant, was properly refused. If no.t otherwise faulty, it was confusing and misleading. It uses the word “deceased” several times, and there was no deceased. The party injured testified in the case, and the defendant was not indicted or tried for homicide.

Charge 17, requested by the defendant, was properly refused. The burden was not upon the state to show that the defendant was not free from fault in bringing on the difficulty until the defendant had shown that he was in imminent peril of life or great bodily harm and could not have retreated without increasing his peril.— Pugh v. State, 132 Ala. 1, 31 South. 727. The charge assuipes that the .defendant had shown these facts, when it was a question for the jury under the evidence in the case.

Charge 21, requested by the defendant, was properly refused. If for no other reason, it was had in pretermit-ting the defendant’s freedom from fault in bringing on the difficulty or willingly entering into the combat.

Beversed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.