Scott v. State

90 So. 47, 18 Ala. App. 238, 1921 Ala. App. LEXIS 192

• Court: Alabama Court of Appeals
• Decided: June 7, 1921
• Docket: 8 Div. 783.
• Status: Published

Opinion

MEBBITT, J.

The appellant was indicted for murder in the first degree, convicted of murder in the second degree, and sentenced to the penitentiary for a term of 12 years.

[1, 2] The testimony of the witnesses Lane and French was properly admitted. Both of them testified that they saw the wound on the deceased, and, to state further, if they could, that it went up or down, was a matter that did not call for an expert opinion, but was simply a maiter of telling what they saw, and did not call for, a conclusion or an opinion. The cases cited by appellant in support of his objections to this testimony are not apt. Besides, other witnesses testified without objection that the wound went down.

[3] The evidence was in conflict, and the affirmative charge was properly refused.

[4] Written charge 3 was properly refused. This charge leaves out of consideration the question as to who provoked the difficulty, and has other vices sufficient to condemn it.

[5] Written charge 4 was substantially covered by the court’s oral charge.

[6] AYritten charge A omits the duty devolving upon the defendant of being free from fault in bringing on the difficulty, and also the duty to retreat.

[7] Written charge E is bad, in that it directs a verdict of acquittal predicated on certain facts, and conclusions, irrespective of whether such facts and conclusions grew out of the evidence.

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

Affirmed.

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