Opinion
6 Div. 186.
May 17, 1927.
Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.
Phillip Lewis was convicted of manslaughter in the first degree, and he appeals. Affirmed.
At the conclusion of the evidence counsel for defendant handed the court several written charges, among which were some carbon copies of written charges used in the case of State v. Walter Smith (defended by same counsel), charged with the killing of one Pierce, and in one or more of which carbon copy of charges the name Pierce appeared. Whereupon the court stated to counsel:
"Do you think I should pass on written charges of this kind, charges that have to do with the plea of insanity, etc., when there is no such plea in this case, nor is there any one by the name of Pierce. * * * I will rule on them, all right, but you ought not to do a thing of that kind. Read this one over."
Counsel replied, in effect, that he was submitting the charges to the court, and wished the court to give them or refuse them.
The court reiterated that the charges should not have been presented in the shape they were in. Counsel replied to the effect that the remarks of the court had embarrassed and humiliated him, and that the court might better have marked the charges given or refused. The court made reference to the case last tried by counsel in which the charges had been all written on one sheet of paper, stating that they had been received, but might have been refused for that reason.
Counsel objected to the statement and to each statement made in the presence of the jury.
In the oral charge the court stated to the jury:
"Gentlemen, I want to say at the outset that you should not consider anything that I said to" (counsel) "about the charges in this case, or what he said to me about the charges. I did not mean or intend to embarrass or criticize him at all in what I said about the charges. I expected him to act on it without calling the attention of the jury to it. But, be that as it may, you should not consider what passed between him and me — you should not be influenced in the least by that. That is not the evidence in this case. * * * So you eliminate all of that; that has got absolutely nothing to do with your duty."
G. C. Boner, of Birmingham, for appellant.
No homicide can be murder or manslaughter in the first degree unless it is shown that there was an intent to inflict the injury which caused death. Johnson v. State, 94 Ala. 35, 10 So. 667; Goodman v. State, 15 Ala. App. 161, 72 So. 687; Bob v. State, 29 Ala. 20; Mitchell v. State, 60 Ala. 26; Code 1923, §§ 4454-4460. It is error for the court to refuse to give a charge stating a correct proposition of law applicable to the evidence in the case, and which proposition has not been covered by the oral charge or given charges. Code 1923, § 9509. It is error for the court to unjustly criticize counsel or show prejudice toward him in the presence of the jury. Wolffe v. Minnis, 74 Ala. 386; Hundley v. Chadick, 109 Ala. 575, 19 So. 845; Billingsley v. State, 96 Ala. 126, 11 So. 409.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
Appellant was indicted for the offense of murder in the first degree, tried, and convicted of the offense of manslaughter in the first degree. His punishment was fixed at imprisonment in the penitentiary for a term of ten years.
All the evidence tended to show that defendant killed the deceased by a shot from a pistol, which shot was aimed at or for one Flennoy, with whom defendant was engaged in a difficulty. This being the case, defendant's guilt or innocence is to be determined solely on the proposition of whether or not he would have been blameless had the shot killed Flennoy, for whom it was intended. Gilbert v. State, 20 Ala. App. 28, 100 So. 566.
The trial court's full and comprehensive oral charge was based, pertinently, on this principle, and the same, in connection with the numerous written charges given at appellant's request, seems to cover every phase of the law applicable. This in itself is a sufficient justification for the refusal of each of the written charges which stated a correct proposition of applicable law indorsed "Refused" in the record.
The trial court fully cured in his oral charge any error he may have committed in his remarks to counsel for defendant upon the presentation by him to the court of defendant's requested written charges.
It was not error to put the defendant to trial with the presence of only 32 jurors. Code 1923, § 8646.
We have searched the record and the bill of exceptions in accordance with our statutory duty, and fail to find anywhere prejudicial error committed by the trial court in the conduct of the trial of appellant.
The judgment of conviction is affirmed.
Affirmed.