Stallworth v. State

46 So. 518, 155 Ala. 14, 1908 Ala. LEXIS 308

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

Opinion

SIMPSON, J.

The appellant was convicted of tbe crime of murder. Tbe demurrer to tbe indictment was properly overruled. Tbe charge in tbe indictment that tbe defendant “kill” tbe deceased is so plainly a clerical mistake in leaving off “ed” that it is self-correcting; and so, also is tbe omission of tbe word “is” in tbe usual formula. “whose name is to tbe grand jury unknown.”

Tbe oral request for tbe general charge, of course, could not be considered. Dannelley v. State, 130 Ala. 132, 30 South. 452. There was no error in refusing to give tbe general charge in favor of tbe defendant.

Charge 5, requested by tbe defendant, besides being defective in having tbe word “of” where there should have been an “if” is also bad because it bases a failure to convict solely on tbe evidence produced by tbe prosecution ; whereas, there may have been evidence produced by tbe defendant which may have been sufficient to authorize a conviction. Hence tbe court cannot be placed in error for refusing to give this charge.

Without mentioning other insufficiencies, charges 7 and 8 were properly refused, for tbe reason that neither assault and battery nor assault with intent to commit murder was involved in this case.

There being no error apparent on the record, tbe judgment of tbe court is affirmed.

Affirmed.

Tyson, C. J. and Dowdell and Anderson, JJ., concur.