Opinion
8 Div. 685.
March 20, 1928.
Appeal from Circuit Court, Franklin County; Charles P. Almon, Judge.
Charley Milton and Horace Wear were convicted of murder in the second degree and manslaughter, respectively, and they appeal. Affirmed.
Williams Chenault, of Russellville, for appellants.
Charges on insanity should have been given. Douglass v. State, 21 Ala. App. 289, 107 So. 791. Counsel discuss other questions, but without citing additional authorities.
Charlie C. McCall, Atty. Gen., and W. M. Rayburn, Asst. Atty. Gen., for the State.
The court properly overruled charges requested by appellant and covered by the oral charge and other given charges. Code 1923, § 9509; Miller v. State, 110 Ala. 69, 20 So. 392; Murphy v. State, 108 Ala. 10, 18 So. 557; Bell v. State, 11 Ala. App. 214, 65 So. 688.
Appellants were separately indicted for murder in the first degree. Each indictment charged that the accused named therein unlawfully and with malice aforethought killed Charlie Hall. In Milton's indictment it was alleged he used an "iron rod," and in Wear's that Wear used "an iron coupling pin." By agreement the two cases were tried together, and the jury found Milton guilty of murder in the second degree, and fixed his punishment at imprisonment in the penitentiary of the state for a term of 16 years. It found Wear guilty of "manslaughter," and fixed his punishment at imprisonment in the penitentiary for a term of 5 years. Appropriate judgments of guilt were rendered on each verdict, and from the two judgments the appellants bring, respectively, separate appeals.
The verdict in Wear's Case fixing his punishment at imprisonment in the penitentiary for a term of 5 years leaves no room to doubt the intention of the jury to find him guilty of manslaughter in the first degree, and, this verdict being fully warranted by the evidence, no advantage can accrue to him here on appeal by reason of the fact that the verdict, as returned, simply stated that he was guilty of "manslaughter." No mention of the ruling upon his motion for a new trial is contained in the bill of exceptions, hence it is not before us.
The trial court, in his comprehensive oral charge, fully and accurately covered the rules governing as to appellant Milton's plea of not guilty by reason of insanity. Hence there was no error in refusing written charges requested by him, embodying the same principles.
The facts were, briefly, that appellant Milton, claiming to conceive that Hall, the deceased, had been unduly intimate with his, Milton's, wife, made a murderous assault upon Hall — who was, at the time, at work in the same shop or plant with Milton — and who, at said time, according to all the testimony, was molesting in no way the said Milton. Hall, a large, powerful, man, thereupon seized Milton, threw him to the ground, and held him. While so upon or over Milton, and holding him, or, as some of the evidence tended to show, choking him, Wear, a mere 17 year old boy, the nephew of Milton, came upon the scene, and without asking any questions seized an iron "coupling pin" and struck Hall on the head with it. Within a few hours Hall died, either as the result of the blows struck him with an "iron pin" by Milton, or as the result of the blow struck him with the "iron coupling pin" by Wear, or as the result of both.
The cases seem to have been tried without error. And each of the judgments must be affirmed.
Affirmed.