Evans v. State

82 So. 625, 17 Ala. App. 141, 1919 Ala. App. LEXIS 152

Opinion

BRICKEN, J.

The record as originally filed omitted the judgment of conviction. Upon a return to the writ of certiorari, the judgment as so certified disclosed that the defendant was convicted for assault to murder, omitting the recital that the assault was with intent to murder. Thereafter the solicit- or of the Ninth judicial circuit filed a motion to amend the judgment nunc pro tunc. A hearing was had on this motion on April 1, 1919, and granted. Thereafter an additional writ of certiorari was issued from this court, directed to the clerk of the circuit court of Cherokee county, to certify to this court the judgment in the cause as last amended, and a return to this last writ has been made, showing by the judgment as last amended that the defendant was convicted of assault with intent to murder.

The appellant, through his counsel, on the hearing of the motion to amend the judgment nunc pro tunc, filed certain exceptions to the sufficiency of the motion for the amendment. These objections were overruled by the court, and after the state had offered all of its evi-j deuce on the motion, the appellant máde his motion to deny said motion to amend the judgment entry, which motion was overruled and appellant excepted.

[1] The state followed the* proper rule in correcting and having entered the proper 'judgment based upon the bench notes made at a^former term of the court. De Bardeleben v. State, 77 South. 979; 1 Harris v. Bradford, 4 Ala. 214; Glass v. Glass, 24 Ala. 468; Yonge v. Broxson, 23 Ala. 684; Cosby v. State (Sup.) 80 South 803. 2 The various rulings of the trial court in the proceedings to amend the judgment nunc pro tunc were without error.

The only ruling of the trial court insisted upon by the appellant as'being erroneous is the action of the court in the refusal of written charges 4, 5, and 6, and to the action of the court in giving at the request of the solicitor written charge No. 1.

[2, 3] Charge 1, as requested by the state, might have been well refused as being misleading. But the giving of a misleading charge is not reversible error, though it is always better practice to refuse them. Hammond v. State, 147 Ala. 79, 41 South. 761. Where charges are misleading, the other party can always protect himself from any misleading tendencies by explanatory charges. Heningburg v. State, 153 Ala. 13, 45 South. 246. It may be noted in this connection that Mr. Justice Mayfield, in the sixth volume of his Digest, at page 110, par. 141, has expressed the opinion that the rule should be different.

[4] Charge 4, requested by the defendant, is erroneous, in that it places the burden on the state to convince the jury beyond a reasonable doubt that the defendant was, at the time of the commission of the offense, mentally incapable of forming the intent. A defendant charged with crime is presumed to be mentally capable of forming the intent, and any mental incapacity is a matter of defense, which should be reasonably established to the satisfaction of the jury to such an extent as to raise a reasonable doubt of the defendant’s guilt. Williams v. State, 13 Ala. App. 133, 69 South. 376; Gater v. State, 141 Ala. 10, 37 South. 692.

[5] Charges 5 and 6 were amply covered by given charges A and D.

We find no error in the record, and the judgment is affirmed.

Affirmed.

1 Ala. App. 367.

2 202 Ala. 419.