Brown v. State

43 So. 194, 150 Ala. 25, 1907 Ala. LEXIS 327

Opinion

ANDEBSON, J.

The record shows a sufficient compliance with the statute as to setting case, drawing jury, etc. — §§ 5004, 5005 of the Code of 1896.

The defendant sustained no injury as to the exclusion of the evidence as to “old holes in the bones of deceased.”

The predicate for the dying declarations was sufficient.—Gregory v. State, 140 Ala. 16, 37 South. 259; McQueen v. State, 94 Ala. 50, 10 South. 433.

In the absence of any evidence of flight, the fact that defendant surrendered to the sheriff after the killing was not admissible. He could not by his subsequent act make evidence for himself, and the fact that the state proved this fact for him did not warrant him in doing so over the state’s objection. Moreover, this fact had been proved by several, state witnesses, was undisputed, and we cannot see Low the defendant was injured by a denial of further proof on the subject.

Charge 6, requested by the defendant, should have been given. It is the same as a charge approved by this court in cases of Neilson v. State, 40 South. 221, and Gilmore v. State, 99 Ala. 154, 13 South. 536.

Charge 11, requested by the defendant, was properly refused. It has often been condemned by this court.—Pitts v. State, 140 Ala. 70, 37 South. 101.

Charge 18, requested by defendant, is a mere argument, and -was properly refused.

Charge 25, requested by the defendant, was properly refused. It postulates an acquittal upon a mere “doubt,” and not a reasonable doubt.—Shirley v. State, 144 Ala. 35, 40 South. 269.

Charges 42 and 43, requested by the defendant, were properly refused. They were mere answers to the solicitor’s argument.—Tribble v. State, 145 Ala. 23, 40 South. 938.

Charges 45 and 46 were properly refused. While dying declarations should be received in evidence with caution, the -weight and sufficiency is a question for the jury, as is the rule as to all evidence nrled admissible by the trial court. Juries should consider and weigh all evidence with caution; but a charge which singles out certain parts of the evidence, and seeks to lay special stress thereupon, and to give undue prominence thereto, is properly refused.

Charge' 47, requested by defendant, the general charge, was properly refused.

Charge 48, requested by defendant, the general charge as to the second count of the indictment, had already been given. It is the same as given charge A.

For the error above pointed out, the judgment, of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Haralson, Dowdell, Denson, and McClellan, JJ., concur.