Lawman v. State

93 So. 69, 98 So. 69, 18 Ala. App. 569

Opinions

Among other things, the act approved September 25, 1915 (Acts 1915, p. 815), provides: "The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal, if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge or in charges given at the request of the parties." The only difference between specially requested instruction 5 (the refusal of which was held to be error in Taylor v. State, 17 Ala. App. 28, 81 So. 364) and given charge 1, as reproduced in the certificate of the Court of Appeals, ante, is that the former (charge 5) names a particular witness, and the latter (charge 1) refers, generally, to "any witness" found to have "willfully sworn falsely concerning any material point in the case." The greater includes the lesser. The generally applicable reference in charge 1 to "any witness" comprehended, necessarily, the witness named in refused request numbered 5. Since the proposition and subject-matter of request numbered 5 was given to the jury through the broader, yet equally applicable, terms employed in charge 1, the conclusion to reverse in Taylor v. State, supra, was erroneous, and that decision, in the particular under consideration, is unsound.

All the Justices concur.