Osborn v. State

73 So. 985, 198 Ala. 21, 1917 Ala. LEXIS 135

• Court: Supreme Court of Alabama
• Decided: February 1, 1917
• Status: Published

Opinion

THOMAS, J.

The defendant was convicted of murder in the first degree, and sentenced to imprisonment for the term of her natural life.

(1) In all civil and criminal cases the judge must charge the jury in writing, if the charge is requested to be so given by either party, “and notice of such requisition is given [the court] after the testimony is closed, and before the argument to the jury is commenced.”—Code, 1907, vol. 2, § 5363; Wilson v. State, 171 Ala. 25, 35, 54 South. 572; Ragland v. State, 125 Ala. 12, 27 South. 983; Orr v. State, 117 Ala. 69, 23 South. 696.

The demand that the charge of the court be given in writing came too late when .made for the first time “during the closing argument of the solicitor.”

(2) The court committed no error in refusing defendant’s written charges Nos. 18 and 19 as abstract.—6 Mayf. Dig. 112, § 21; Shelton v. State, 144 Ala. 106, 42 South. 30; Wright v. State, 156 Ala. 108, 47 South. 201; Adams v. State, 175 Ala. 8, 57 South. 591; Harper v. State, 8 Ala. App. 346, 63 South. 23, and authorities. There was ample evidence to support the verdict of the jury; and no error was committed in refusing defendant’s written charges 37 to 42, inclusive (7 Mayf. Dig. 134), nor in overruling the motion for a new trial.

(3) Defendant’s refused charge 5 might well have been given under the rule announced in Kennedy v. State, 140 Ala. 1, 37 South. 90; Davis v. State, 188 Ala. 59, 66 South. 67, and De Wyre v. State, 190 Ala. 1, 67 South. 577, yet the defendant had the benefit of the instruction sought, in her given charge 59.

Defendant likewise had the benefit of charge A (refused), in her several written charges given by the court.

(4) The averment in the indictment was that the other name of the deceased was to the grand jury unknown. The indictment was free from demurrer.—7 Mayf. Dig. 419; Duvall’s Case, 63 Ala. 12; Harrison’s Case, 144 Ala. 20, 40 South. 568; Terry v. State, 120 Ala. 286, 25 South. 176.

The judgment of the criminal court of Jefferson county is affirmed.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.