PELHAM, P. J.
The defendant was indicted for murder in the second degree, and convicted of manslaughter in the first degree, and sentenced to a term of imprisonment in the penitentiary within the limitations of the periods of punishment prescribed by statute in such cases.
(1, 2)
The defendant, in brief filed, argues at some length that the great weight of the evidence favors the defendant’s theory of the case that some one else threw the rock that killed the deceased, when defendant and several others were present at a negro gathering (the defendant and all parties concerned being colored people) ; and that he (the defendant) was not at a place when the rock was thrown to make it physically possible for him to have been the person that threw the rock. There was testimony introduced in behalf of the state that the defendant threw the rock, striking the deceased on the forehead, inflicting a wound from which she subsequently died. There was also evidence going to show that the defendant had made threats against the deceased. No motion was made to set aside the verdict as contrary to the weight of the evidence, nor was the general charge in behalf of the defendant requested on the trial of the case; and we cannot see that the question of the weight of the evidence is presented on the record for review. The evidence was in sharp conflict.as to the defendant’§, guilt, but there was ample evidence before the jury to sustain the verdict of guilt. The credibility to be accorded and the weight to be given the evidence were for the jury.
(3, 4)
The only exception reserved to the ruling of the court on the evidence goes to the court’s sustaining an objection of the solicitor to a question asked the witness Lula Gunn on cross-examination by defendant’s counsel: “Did you have Charlie Carter summoned?” The question assumes that Charlie Carter had been summoned as a witness, a fact which does not appear from anything in the record, and the court’s ruling could be sustained for this
reason.
— Andrews
v. State,
159 Ala. 14, 27,
48 South. 858. It is also shown that the witness admitted that she had given in the names of state’s witnesses and had them summoned, and no injury could have resulted to defendant in the court’s sustaining an objection to permitting her to repeat the fact with respect to this particular witness — if he was a wit
ness.-
— Roden
v. State,
3 Ala. App. 204, 58 South. 73.
(5)
Charge No. 5 was properly refused. Beginning with the case of
Rogers v. State,
117 Ala. 9, 22 South. 666, charges of this character have repeatedly been held bad. See
Montgomery v. State,
169 Ala. 12, 53 South. 991;
Goodlett v. State,
136 Ala. 39, 33 South. 892;
Rogers v. State,
117 Ala. 9, 22 South. 666; and
Key v. State,
4 Ala. App. 76, 58 South. 946.
We find nothing in the record justifying a reversal of the judgment of conviction. The defendant seems to have had a fair trial at the hands of the court, and the question of his guilt or innocence was a matter for the jury that it has resolved against him.
Affirmed.
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