Bluitt v. State

49 So. 854, 161 Ala. 14, 1909 Ala. LEXIS 163

Opinion

ANDERSON, J.

The defendant was tried for manslaughter, not murder; and as malice is not an essential ingredient of manslaughter, charge 4, by the defendant, was properly refused.

Charges 5, 6, 7, and 8, requested by defendant, were properly refused. If not otherwise bad, they were faulty and misleading in pretermitting defendants freedom from fault in provoking the difficulty. He may not have actually brought on the difficulty, but may have, by some word or deed, provoked or contributed to same, yet"the jury could be misled by the charges to the exoneration of the defendant, unless he actually, solely, and entirely brought on the difficulty.

Charge 13, refused the defendant, should have been given. It is an exact copy of. charge 26 held good upon the former appeal, 151 Ala. 41, 44 South. 84. The evi-. dence is not so changed upon the present appeal as to render it abstract. Nor can its refusal be justified because duplicated by given chages, as none of the given charges, disclosed by the record, cover said charge.

The judgment of the law and equity court is reversed and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.