Opinion
7 Div. 733.
June 13, 1944. Rehearing Denied June 27, 1944.
Appeal from Circuit Court, Talladega County; R.B. Carr, Judge.
Luke Moore was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Moore v. State, 7 Div. 801, 18 So.2d 805.
The following charges were refused to defendant:
"11. The Court charges the jury that if the defendant did not provoke the difficulty and that he was free from fault in bringing it on, and that the said Paul Sanders made an overt act or attempt to use a knife on the defendant and he acted in so doing in such a manner as to indicate to a reasonable man that his intentions was to do great bodily harm to the defendant and there was no reasonable mode of escape or retreat without increasing his danger and the defendant honestly believed that he was in danger of great bodily harm at the hands of the said Paul Sanders, then the defendant was authorized to anticipate said decedent and cut him and if the jury has a reasonable doubt as this proposition they must find the defendant not guilty."
"16. I charge you gentlemen of the jury if you find from this evidence that the deceased and the defendant, Luke Moore, together with others were at the home of one L.E. Taylor and without any provocation on the part of the defendant, Luke Moore, the deceased cursed the defendant, Luke Moore, calling the defendant's father, mother and sister by vile names and with a knife in his hand told the defendant, Luke Moore, that if he didn't like it that he the deceased would cut the defendant's, Luke Moore, head off and throw it in the fire and that the defendant, Luke Moore, left the room with the deceased having in his hand a knife with a blade in each end and that immediately after the defendant left the room the deceased followed him and while on the veranda that the deceased without any provocation assaulted the defendant Luke Moore with said knife and that the defendant had no reasonable motive of escape from said assault and used no more force than was necessary to defend himself from great bodily harm or death, cut the deceased which caused his death then in that event your verdict will be for the defendant."
John J. Pruet, of Ashland, for appellant.
Charge 11 was a correct charge and should have been given. Brown v. State, 20 Ala. App. 39, 100 So. 616; Richardson v. State, 204 Ala. 124, 85 So. 789. Charge 16 was erroneously refused. Defendant was entitled to the affirmative charge.
Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.
Where there is evidence tending to support a criminal accusation, the case should go to the jury. Bell v. State, 16 Ala. App. 36, 75 So. 181; Jackson v. State, 30 Ala. App. 468, 8 So.2d 590. Requested charges on self-defense which have been fully and fairly included in the court's oral charge are properly refused. Locklayer v. State, 209 Ala. 605, 96 So. 759; Harris v. State, 241 Ala. 240, 2 So.2d 431; Sanders v. State, 243 Ala. 691, 11 So.2d 740. Where charge is set forth in both record and bill of exceptions, in event there is a difference the charge as set forth in the record proper will prevail. Code 1940, Tit. 7, §§ 272-274; Ensley Holdg. Co. v. Kelley, 229 Ala. 650, 158 So. 896.
Appellant, tried jointly with one Austin Brown, under an indictment charging them with the offense of murder in the first degree, was convicted of the offense of manslaughter in the first degree and his punishment fixed at imprisonment in the penitentiary for the term of ten years. Austin Brown was acquitted.
Appellant offered no testimony. That offered on behalf of the State — consisting in large part of testimony as to a "confession" by appellant — was to the undisputed effect that appellant killed one Paul Sanders by cutting him with a knife, which we know to be a deadly weapon.
As we said in the opinion in the case of Coates v. State, 29 Ala. App. 616, 199 So. 830, and in the opinion in the case of Grays v. State, 28 Ala. App. 394, 185 So. 191, we repeat here: "The evidence in this case is, without dispute, that the homicide was committed by the use of a deadly weapon; where such is the case, the proof of the use of a deadly weapon raises the presumption of malice, and throws upon the defendant the burden of repelling the presumption, unless the evidence which proves the killing shows, also, that it was done without malice."
Or, again quoting from our opinion in the case of Coates v. State, supra, "as the Supreme Court said in the case of Cooley v. State, 233 Ala. 407, 171 So. 725, 727: 'Defendant's testimony admits an intentional killing with a deadly weapon. The burden was then upon him to prove * * * self-defense * * *. And, though the evidence of defendant may have been without dispute, its credibility was for the jury * * *. They were not bound to accept it as true * * *. Indeed, they might well have rejected it in their discretion. Since they did so, their verdict was well supported.' "
Here, appellant's testimony as to his plea of self-defense may be said to be found in his admission that he cut and killed deceased with a knife; and the reasons he gave therefor.
So that, under the law, as hereinabove set forth, and the testimony, as we have noted, it is plain that there was no error in the trial court's refusing to give to the jury at appellant's request the general affirmative charge to find in his favor. The issues in the case were correctly defined by the learned trial court, and properly submitted to the jury for their decision.
Looking, as we must, to the record proper, rather than to the bill of exceptions — there being a conflict between the two, here — for the correct language of appellant's requested and refused written charges (Ensley Holding Co. v. Kelley 229 Ala. 650, 158 So. 896) it is too obvious for comment that, as drawn, and so appearing, there was no error in refusing to give to the jury requested written charges 11 or 16.
The other written, requested and refused charges have each been carefully examined. There was error in the refusal of no one of same. If the charge was not abstract, confusing, or incorrect, it was fully covered by and included in, in principle at least, either the trial court's ample oral charge, or some one of the large number of written charges given to the jury at appellant's request.
We can find no error, anywhere, and the judgment is affirmed.
Affirmed.
CARR, J., not sitting.