Hays v. State

46 So. 471, 155 Ala. 40, 1908 Ala. LEXIS 290

• Court: Supreme Court of Alabama
• Decided: April 23, 1908
• Status: Published

Opinion

SIMPSON, J.

The appellant was convicted of manslaughter in the first degree. There was no error in overruling tbe objection of tbe defendant to tbe question by tbe solicitor to tbe defendant, on cross-examination, “What did you take that pistol there for?” — Hurst v. State, 133 Ala. 96, 31 South. 933; Eatmam, v. State, 139 Ala. 68, 36 South. 16, and cases cited.

There was no error in giving the charges requested by the state, except that the first ivas too favorable to the defendant, in stating that he must be “reasonably” without fault in bringing on the difficulty, and of this the defendant could not complain. — Jackson v. Stair, 77 Ala. 18; Crawford v. State, 112 Ala. 1, 21 South. 214; Talbert v. State, 121 Ala. 33, 37, 25 South. 690.

Charges 1 and 2, requested by the defendant, were properly refused, for the reason that the facts therein referred to were not in issue in this case and the charges were misleading.

Charge 3, requested by the’ defendant, was properly refused, as being invasive of the province of the jury and emphasizing too much one feature of the evidence. —Austin v. State, 145 Ala. 38, 40 South. 989.

Charge 4, requested by the defendant, was misleading, and was properly refused. The defendant may have armed himself with a pistol, gone outside the house for the purpose of getting up the difficulty, and may, in fact, have previously said or done something to bring on the difficulty, and yet have been walking from the gate towards the honse ,and “said nothing or did nothing” “then and there” to provoke the attack, in which case he wonld not be free from fault, and would be willingly entering into the difficulty.

The judgment of the court is affirmed.

Tyson, C. J., and Dowdell and Andersox, J.T., concur.