Chestnut v. State

61 So. 609, 7 Ala. App. 72, 1913 Ala. App. LEXIS 19

• Court: Alabama Court of Appeals
• Decided: February 11, 1913
• Status: Published

Opinions

PELHAM, J.

The refusal of the court to exclude that part of the answer of the state’s witness Alleen Denson to the effect that, when shooting at the witness, the defendant shot her daughter, was without prejudice to the defendant, as this fact was shown by the testimony of other witnesses without objection, was not denied by the defendant, and was without conflict in the evidence. Besides, there was but one difficulty, and the matter testified to was part of the res gestae. — McCoombs v. State, 151 Ala. 7, 43 South. 965. Charge No. 1 is abstract, in that it includes all the state’s witnesses. —Naugher v. State, 6 Ala. App. 3, 60 South. 458.

It is not clear what is meant by the language used in charge No. 3, “and the jury think their testimony on these beliefs should be disregarded,” etc. The charge is involved and confusing, and calculated to mislead the jury. Such charges are properly refused. — Hill v. State, 156 Ala. 3, 46 South. 864; Rigsby v. State, 152 Ala. 9, 44 South. 608.

Charges 5 and 6 are argumentative, and are of that class of charges which may be either given or refused without the court’s thereby being put in error. — Phillips v. State, 162 Ala. 14, 50 South. 194; Amos v. State, 123 Ala. 50, 26 South. 524; Montgomery v. State, 169 Ala. 12, 53 South. 991.

The proposition of law embodied in requested charges AA and S is covered by given charge D.

Charges Mj N, O, and P are not correct expressions of the law. An intent to murder is an essential element of the offense charged,'and it is sufficient to constitute the offense' if the assault, if it had not failed of its intended effect and had terminated fatally, would have resulted in murder in either degree. — Lawrence v. State, 84 Ala. 424, 5 South. 83. And, as opprobifious words can never reduce an unlawful homicide from murder to manslaughter (Smith v. State, 103 Ala. 4, 15 South. 843), it follows that “sudden passion from an immediate insult” is not enough to repel the imputation of malice under a charge for assault with intent to murder. — Lane v. State, 85 Ala. 11, (4 South. 730.)

We have discussed all the matters insisted upon as error in brief of counsel for the appellant, and discover no reversible error in the record, and the case will he affirmed.

Affirmed.