Jenkins v. State , 82 Ala. 25 ( 1886 )

STONE, C. J.

— The witness, William Smith, testified, against the objection and exception of defendant, that “He (the defendant) appeared like he was mad with Silas (the deceased) for snatching his nickel up.” On being interrogated by the court, as to whether the objection went to the entire answer, counsel replied that it did. We think there was no error m allowing the witness to testify that the accused appeared to be mad. Anger, or bad temper, can be proved in no other way. — Carney v. State, 79 Ala. 14. The objection being general to the whole reply, the court committed no error in overruling it, even if part of it was objectionable. — 3 Brick. Dig. 443, § 570.

The testimony tends to show that the knife, with which the mortal wound was inflicted, was from two to three inches long in the blade. The objection is urged befoie us, that in giving the charge requested by the prosecution, the court assumed as fact that this was a deadly weapon, when its deadly character should have been left to the jury. We do not so understand the charge. It did not undertake to define what would be a deadly weapon. It simply declared the rule of law applicable to homicide caused by the use of a deadly weapon, and declared it correctly. We can not suppose, in the absence of a showing to the contrary, that the City Court did not instruct the jury as to what would constitute a deadly weapon. If there was ground for apprehending that the charge would or might lead the jury to the belief that the court intended to be understood as affirming, as matter of law, that the knife employed in this ease was, per se, deadly, this would present a proper subject for an explanatory charge. — 3 Brick. Dig. 113, §§ 107, 110.

"We need not inquire, whether the failure of the presiding judge to sign his name to the charge which he marked “refused,” could, under any circumstances, become a reversible error. Presumptively, the omission was an oversight. To be available, the attention of the court should have been called to it; and if the omission was not then supplied, the question should be raised by au exception reserved.— Tyree v. Parham, 66 Ala. 424.

The charge asked by defendant was rightly refused. Under the testimony most favorable to him, the defendant commenced the encounter, by attempting to snatch the hat of deceased from his head, in a rude or angry manner. This was an assault,- — a misdemeanor; and if death ensued, although by misadventure and not likely to ensue, the defendant would not be guiltless. He would, ordinarily, be guilty of manslaughter in the second degree, under the circumstances as detailed by himself. — McManus v. State, 36 Ala. 285; Ex parte Nettles, 58 Ala. 268; Mitchell v. State, 60 Ala. 26; Judge v. State, 58 Ala. 406; Ex parte Warwick, 73 Ala. 57. The hypothesis of the charge, while, if believed. it may have required defendant’s acquittal of murder, did not, when interpreted in connection with the testimony, demand his entii’e acquittal.

Affirmed.