Davis v. State , 152 Ala. 25 ( 1907 )

DENSON, J.

The defendant was tried and convicted under an indictment which charges murder in the second degree, and was sentenced to imprisonment in the penitentiary for a period of 10 years.

The only questions presented by the record for consh L-eration relate to charges given at the request of the state and charges refused to the defendant. We find no fault with the charges in writing given at the request of the state.

Charge 18 is argumentative, and was well refused.— Stewart’s Case, 133 Ala. 105, 31 South. 944.

The indictment is for murder in the second degree; but it embraces manslaughter, and under it, if the jury had not been convinced beyond a reasonable doubt of defendant’s guilt of murder in the second degree, but had been convinced beyond a reasonable doubt that he was guilty of manslaughter, the defendant could have been convicted of that offense. The elements composing the two offenses are not the same. Under -charge 19, if it had been given, the jury might have been misled to believe that, if the evidence failed to show beyond a reasonable doubt that malice (an essential element of murder, but not of manslaughter) existed, they should acquit the defendant entirely. For this reason the charge was properly refused. — Stoball’s Case, 116 Ala. 454, 23 South. 162; Thompson’s Case, 131 Ala. 18, 31 South. 725; Littleton’s Case, 128 Ala. 31, 29 South. 390.

Charge 20 is abstract. There is no evidence in the record tending to show that defendant’s “reasoning faculties were impaired and his mental volition destroyed,” as hypothesized in the charge.

Charge 21 was properly refused. The charge is unintelligible and incomplete.

Charge 22 has been many times condemned. — Scott’s Case, 133 Ala. 112, 32 South. 623.

Charge 23 is argumentative and gives undue prominence to a part of the evidence.

Charge 24 is invasive of the province of the jury, besides being otherwise bad.

Charge 25 was properly refused. The jury, after considering all the evidence, might have been unable to say beyond a reasonable doubt that the defendant was not free from fault, yet upon further consideration might have been able to reach the conclusion beyond a reasonable doubt that he was not free from fault. The latter part of the charge contemplates a further consideration of the evidence, but requires the jury, in such further consideration, to take it for granted that the defendant was free from fault. This is a clear invasion of the province of the jury.

Charge 26 was properly refused. Under it, if the jury should have determined that the deceased was a “fussy” character or man, they were required to consider that character in determining whether the circumstances were such as to impress a reasonably prudent man that he was in great danger of life or limb. The jury might have found that the deceased was a quarrelsome character,. and yet failed to be convinced that he was a dangerous or bloodthirsty man. Moreover, the charge is argu-. nientative, — Rhea’s Case 100 Ala. 119, 14 Southfl 853.

There is no error in this record, and the judgment of conviction will be affirmed.

-Affirmed.

Tyson, C. J., and Haralson and Simpson, J.J., concur.