Cunningham v. State

241 So. 2d 852, 46 Ala. App. 328, 1970 Ala. Crim. App. LEXIS 456

• Court: Court of Criminal Appeals of Alabama
• Decided: November 24, 1970
• Docket: 1 Div. 56
• Status: Published

Opinion

CATES, Judge.

Second degree murder: sentence, 25 years.

Charge 34 refused below reads:

“I charge you that the burden of proof is not on the defendant to establish self-defense by a preponderance of the evidence; but if all the evidence raises in the minds of the jury a reasonable doubt as to whether or not the defendant acted in self-defense, you must find him not guilty.

“Refused, Roy Mayhall, Judge”

This text was held good in Henson v. State, 112 Ala. 41, 21 So. 79 (Charge No. 2). However, in McGhee v. State, 178 Ala. 4, 59 So. 573, Charge 3 (identical) was held bad because it failed to include a definition of “self-defense.” Henson, supra, as to the approval of the charge sub judice was expressly overruled. See Nearer v. State, 198 Ala. 1, 73 So. 429 (Charge 16).

This is enough to dispose of the only point argued. Under Code 1940, T. 15, § 389, we have examined the entire record and conclude that the judgment below is-due to be

Affirmed.