Randall v. State

138 So. 423, 24 Ala. App. 567, 1931 Ala. App. LEXIS 166

• Court: Alabama Court of Appeals
• Decided: December 15, 1931
• Docket: 5 Div. 854.
• Status: Published

Opinion

RICE, J.

Appellant was convicted of the offense of assault with intent to murder. Code 1923, § 3303.

The indictment was in proper form, and the demurrers thereto were overruled without error.

No exceptions were reserved, on the taking of testimony.

The oral charge of the court was pronounced satisfactory, by appellant.

Forty written charges, some of them rather lengthy, were given to the jury at his request.

The substance of his written, request-id,-and refused charge B was fully covered by, and included in, other charges given to the jury.

So, of his written, requested, and refused charge ' C. Then, besides, this written charge C has, in similar circumstances, been held to be argumentative, anil hence properly refused. Davis v. State, 209 Ala. 409, 96 So. 187.

We doubt that we can review the action of the court with reference to -appellant’s written requested charge Q. The same appears in the record indorsed, “Given,” and signed by the trial judge. This would seem to preclude us from giving heed to the recitals of the bill of exceptions that said charge was not, in fact, “given,” but was mixed, inadvertently, with the “refused” charges, -and never read to the jury. Stinson v. State, 223 Ala. 327, 135 So. 571.

Anyhow, we think that, in so far as it was correct, the substance of said charge was fully and fairly given to the jury, otherwise.

We find nowhere prejudicial error, and the judgment of conviction is affirmed.

Affirmed.