Opinion
6 Div. 41.
January 12, 1937. Rehearing Denied March 23, 1937.
Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler, Judge.
Sandy Witt, Sr., was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Witt v. State, 234 Ala. 391, 174 So. 795.
The following charges were refused to defendant:
"18. The court charges the jury that, although there may be no probability of the defendant's innocense, yet, if there is in the minds of the jury a reasonable doubt of his guilt, it is the duty of the jury to give him the benefit of such doubt and acquit him.
"19. If the jury are not satisfied beyond all reasonable doubt, to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the defendant's guilt, they should find him not guilty. And it is not necessary to raise a reasonable doubt, that the jury should find from all the evidence a probability of the defendant's innocense, but such a doubt may arise even when there is no probability of his innocense in the testimony; and, if the jury have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to find the defendant not guilty."
In argument to the jury the solicitor made the following statements, defendant's objections to which were overruled:
"Keep this county down in the high rate of murder," and
"If there is anything improper in my saying keep this county down in the high rate of murder, it might please the gentleman if I would say turn this murderer loose as the evidence shows him to be and arm him with an automatic and let him go out on the Sabbath day and slay again."
J. Reese Murray, of Birmingham, for appellant.
Improper argument of counsel for the state will work a reversal. Black v. State, 23 Ala. App. 549, 129 So. 292; Piano v. State, 161 Ala. 88, 49 So. 803; Smith v. State, 230 Ala. 18, 158 So. 808. Charge 18 is a correct charge. Bell v. State, 115 Ala. 25, 22 So. 526. Charge 19 is likewise correct. Bell v. State, supra; Olden v. State, 176 Ala. 6, 58 So. 307; Roy v. State, 25 Ala. App. 510, 149 So. 713.
A. A. Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.
Charges 18 and 19 were refused without error, for failure to predicate an acquittal upon a consideration of the evidence in the case. Whittle v. State, 213 Ala. 301, 104 So. 668; Davis v. State, 188 Ala. 59, 66 So. 67; Edwards v. State, 205 Ala. 160, 87 So. 179; Owens v. State, 24 Ala. App. 452, 137 So. 311; Arrington v. State, 24 Ala. App. 233, 133 So. 592. The Solicitor did not transcend the bounds of legitimate argument in the statements objected to. Cross v. State, 68 Ala. 476; Olden v. State, 176 Ala. 6, 58 So. 307; Tyler v. State, 210 Ala. 96, 97 So. 573; Frost v. State, 225 Ala. 232, 142 So. 427; Soutoula v. State, 20 Ala. App. 364, 102 So. 151; Mills v. State, 21 Ala. App. 46, 104 So. 889.
This is the second appeal in this case. Witt v. State, 26 Ala. App. 465, 162 So. 137. On a retrial of the case in the circuit court, the defendant was again convicted of manslaughter in the first degree and sentenced to a term of nine years in the penitentiary.
A restatement of the facts in the case will not be necessary on this appeal, they having been sufficiently stated in the report of the case, supra. On this appeal, we content ourselves with saying simply that the evidence was in conflict as to each issue involved, and therefore the questions raised by the pleas of not guilty and self-defense were properly submitted to the jury.
It is insisted by appellant's counsel that the court erred in refusing to give written charges 5, 6, 7, 18, and 19. Of these charges, 5, 6, and 7 relate to the law of self-defense and, in each instance, the principle there requested was amply covered by the court in his oral charge and in given charges requested by the defendant in writing. Where this is the case, the refusal to give a written charge as requested will not be made the basis of a reversal. Refused charges 18 and 19 relate to the degree of proof necessary to authorize a conviction, but neither of these charges is predicated on a consideration of the entire evidence in the case. For this reason, they were properly refused. Arrington v. State, 24 Ala. App. 233, 133 So. 592; Humber v. State, 21 Ala. App. 378, 108 So. 646, and authorities there cited.
The objections and exceptions reserved to excerpts from the argument of the solicitor are without merit. Counsel in the presentation of their cases must be allowed a wide range in exhortations to the jury to discharge the duties resting upon them, in such manner as, not only to punish crime, but to protect the public from like offenses, and as an example to deter others from committing like offenses.
Many decisions of the Supreme Court and of this court have been rendered on questions similar to the ones presented in this record, and, in each case, we have been careful not to so circumscribe the argument of counsel as to embarrass them in discharging the great duty resting upon prosecuting attorneys in the trial of criminal cases.
The motion for a new trial was properly overruled.
We find no error in the record, and the judgment is affirmed.
Affirmed.