Opinion
4 Div. 204.
November 26, 1935.
Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.
Bennie Napier was indicted on a charge of assault with intent to murder. From a conviction of assault and battery, he appeals.
Affirmed; remanded for proper sentence.
This charge was refused to defendant:
"7. If you find from all the testimony in the case that there is a probability of the defendant's innocence, then you should acquit him."
J. N. Mullins, of Dothan, for appellant.
A. A. Carmichael, Atty. Gen., for the State.
No briefs reached the Reporter.
The jury by their verdict having acquitted the defendant of the charge of assault to murder, any errors of trial court relating solely to that charge are rendered harmless and will not be reviewed.
Refused written charge 1 is elliptical as appears from this record and for that reason was properly refused. Moreover, the charge is applicable alone to the charge of assault to murder and if error is rendered harmless by the verdict of the jury.
Refused charges 2 and 3 are applicable alone to the charge of assault to murder.
Refused charge 4 covered in the court's oral charge.
Refused charge 5 is argumentative and was covered in principle in the court's oral charge.
Refused charge 7 is condemned in Edwards v. State, 205 Ala. 160, 87 So. 179.
Refused charges 8, 9, and 10 are fully covered in the court's oral charge.
The sentence of the court is to hard labor for the county for 115 days to pay the fine of $375. The sentence for the costs is indefinite and as to that part of the sentence is void and of no effect. The judgment of conviction is affirmed, and the sentence for fine and costs being defective, the cause is remanded for proper sentence.
Judgment affirmed and remanded.