6 Div. 146.
June 5, 1945.
Appeal from Circuit Court, Jefferson County; John C. Morrow, Judge.
Sam Favors was convicted of manslaughter in the first degree, and he appeals.
The following charges were refused to defendant:
"I. I charge you, gentlemen of the jury, that if the circumstances attending the killing of deceased were such as would justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not retreat without adding to his peril, and defendant believed such to be the case, he was justified in stabbing deceased, although he was not in actual danger, and retreat would not have added to his peril; and, if defendant acted under such circumstances, the burden of showing that defendant was not free from fault in bringing on the difficulty is on the State."
"13. I charge you, gentlemen of the jury, that if the evidence in this case is such as to leave the jury in a reasonable doubt of the defendant's guilt, or if after hearing all the evidence in this case the minds of the jury be in a state of doubt and confusion, your verdict must be for the defendant."
"19. A reasonable doubt is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If, under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you state to yourselves, I doubt if he is guilty, then it is a reasonable doubt, and you should acquit the defendant."
"23. I charge you that if, after looking at all the evidence in this case, your minds are left in such a state of doubt or uncertainty that you cannot say, beyond a reasonable doubt, whether the defendant acted upon a well-founded and reasonable belief that it was necessary to take the life of the deceased to save himself from great bodily harm or death, or that he stabbed before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find."
Beddow, Ray Jones, of Birmingham, for appellant.
It was reversible error for the Court to charge the Jury orally upon the effect of the evidence and virtually to take from the Jury the issue of manslaughter in the second degree. Code 1940, Tit. 7, § 270; Dunn v. State, 8 Ala. App. 410, 62 So. 996; Thrash v. State, 23 Ala. App. 433, 126 So. 606. In a criminal case if the tendencies of the evidence at all support the charge made or afford an inference to be drawn by the jury in support of the charge, the soundness of the evidence is a question for the jury and not for the court unless it is so palpably inconclusive as to fail to make a prima facie case. Way v. State, 155 Ala. 52, 46 So. 273. Per contra, where there is any tendency or inference which might be drawn by the jury from the evidence in support of defendant's plea of not guilty, the weakness of this evidence, if it be weak, is a question for the jury and not the court.
Wm. N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst. Atty. Gen., for the State.
The trial judge in his oral charge may state undisputed facts as disclosed by evidence. Section 270, Title 7 of the Code was not intended to abridge such original, inherent power. Mann v. State, 20 Ala. App. 540, 103 So. 604; Vinson v. State, 29 Ala. App. 234, 194 So. 705; Goff v. Sellers, 215 Ala. 489, 111 So. 210; Dennis v. State, 112 Ala. 64, 20 So. 925; Tidwell v. State, 70 Ala. 33; Bristow v. State, 24 Ala. App. 439, 136 So. 837. The charge of the court of which complaint is made was not a charge upon the effect of the evidence. Dunn v. State, 8 Ala. App. 410, 62 So. 996. It is presumed that every person intends to do what he does, and that the natural, necessary and probably consequence of his acts were intended. Jacobs v. State, 17 Ala. App. 396, 85 So. 837; Cain v. State, 18 Ala. App. 624, 93 So. 263; Worrell v. State, 24 Ala. App. 313, 136 So. 737. The prima facie presumption is that a person committing a crime is legally responsible. Stone v. State, 105 Ala. 60, 17 So. 114. A charge on the effect of the evidence should not be given unless at the request of one of the parties, but when it is clear that no injury has resulted, the judgment will not be reversed. Dugger v. Tayloe, 46 Ala. 320; Bristow v. State, supra.
Appellant was indicted on a charge of murder in the first degree and was convicted of manslaughter in the first degree. He claimed self-defense.
When the State had concluded its evidence in chief, appellant moved to exclude the testimony, taking the position that it had not been shown that the knife wounds inflicted by the defendant caused the death of the deceased. In this contention we cannot concur.
At the time the motion was tendered, the State had developed, without conflict in the evidence, that the fatal difficulty, the basis for the prosecution, occurred in a Railway Express car. Deceased was stabbed by the defendant four times, twice in the chest, once in the left shoulder, and again in the right leg. Deceased died within a few minutes at the scene of the encounter. In fact, when the last stab blows were inflicted, he fell immediately to the floor of the car and died forthwith. Gary v. State, 18 Ala. App. 367, 92 So. 533; Walden v. State, 29 Ala. App. 462, 198 So. 261.
During his argument to the jury the solicitor stated: "The defendant has admitted that he struck the fatal blow." Over timely objections the trial court allowed this statement to remain in the argument. While testifying in his own behalf the defendant deposed: "Yes, sir, dazed me; and when he hits me with the wrench I goes around Mr. McGahey, and I stabbed him standing up, before he could hit me the second lick with the wrench." Clearly, with this evidence before the jury, the solicitor was well within the rule appertaining.
At the conclusion of the oral charge to the jury, appellant's counsel stated: "If your honor please, the defendant excepts to the definition of each degree of unlawful homicide, as outlined by the court in the oral charge down to and including when the court said, 'if the defendant is guilty of anything at all in this case he would have to be guilty of something more than manslaughter in the second degree.' " There are four record pages within this inclusion. Several statements are taken therefrom, and insistence is made that error should be predicated because the court below was not authorized to so charge the jury.
The rule will not permit a review of exceptions interposed to the court's oral charge in a descriptive rather than specific manner. The duty is imposed upon counsel, when exceptions are sought to the oral charge of the court, to so specify the claimed offending portions that the trial judge will be apprised of the verbiage of his charge against which the exceptions are directed. Brock v. State, 28 Ala. App. 52, 178 So. 547; Hall v. State, 11 Ala. App. 95, 65 So. 427; Rigsby v. State, 152 Ala. 9, 44 So. 608; Cowart v. State, 16 Ala. App. 119, 75 So. 711; Forsythe v. State, 19 Ala. App. 669, 100 So. 198.
Among the written charges requested and refused to appellant is the affirmative charge. Without doubt or uncertainty a jury question was posed by the evidence in the case.
Charge numbered one refused to defendant was held to be a correct statement of the law and its refusal reversible error in Thomas v. State, 18 Ala. App. 493, 93 So. 287. However, in Hudson v. State, 217 Ala. 479, 116 So. 800, the charge is condemned and reference is there made to the approval in the Thomas case, supra, as being based on a possible failure to observe certain defects in the charge. It did not receive sanction by this court in Griffin v. State, 28 Ala. App. 314, 184 So. 206, certiorari denied 236 Ala. 584, 184 So. 208, and Pelham v. State, 24 Ala. App. 330, 134 So. 888, certiorari denied 223 Ala. 155, 134 So. 890. We entertain the view that it was properly refused in the instant case.
Refused charge numbered 13 cannot be sanctioned as a correct statement of the law. The defendant's guilt must be hypothesized on a reasonable doubt. Barnes v. State, 22 Ala. App. 581, 118 So. 239; Saulsberry v. State, 178 Ala. 16, 59 So. 476; Harris v. State, 28 Ala. App. 528, 189 So. 787.
Refused charge numbered 19 contains the vice of being argumentative.
Charge numbered 23, which was refused, received approval in Harris v. State, 96 Ala. 24, 11 So. 255, and Chaney v. State, 178 Ala. 44, 59 So. 604. In each of the cases just cited, the court based the correctness of the charge on the fact that the undisputed evidence disclosed that the defendant did not provoke the difficulty, nor was he under duty to retreat. In the case at bar, a dissimilar state of facts appears. The evidence presents a jury question as to each required ingredient or element of self defense. In this state of the record, the charge was refused without error. Gaston v. State, 161 Ala. 37, 49 So. 876; Forman v. State, 190 Ala. 22, 67 So. 583; Smith v. State, 243 Ala. 254, 11 So.2d 471; Shikles v. State, 31 Ala. App. 423, 18 So.2d 412; Griffin et al. v. State, 28 Ala. App. 314, 184 So. 206.
Refused charge numbered 24 is abstract.
We have carefully examined and studied all the questions presented for our review by exceptions reserved during the introduction of the testimony. We forego any discussion of these matters for the reason it so clearly appears there is no merit in any of them. No insistence is made in brief of counsel for appellant for error in this particular.
To treat the many grounds for error posed by the motion for a new trial would necessitate a restatement of what we have hereinabove observed.
The judgment of the primary court is ordered affirmed.