Cobb v. State , 115 Ala. 18 ( 1896 )

COLEMAN, J.

The defendant was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary. The questions reserved for review relate to the refusal of the court to give certain instructions to the jury,' requested by the defendant. The charges which involve the effect of good character, were properly refused under the following authorities : Goldsmith v. The State, 105 Ala. 8 ; Scott v. The State, Ib. 57 ; Webb v. The State, 106 Ala. 52; Crawford v. The State, 112 Ala. 1.

Charge number 8 was properly refused under the authority of Jordan v. The State, 81 Ala. 20.

Charges numbers 9 and 11 are substantially similar to instructions which were condemned in the case of Crawford v. The State, supra. These charges are vicious upon other grounds. Charge 9 asserts the proposition, that if one or more of the State’s witnesses had been impeached, that fact might be sufficient to generate a reasonable doubt of defendant’s guilt, notwithstanding the other evidence in the case demanded a conviction of the defendant. Charge 11 not only fails to predicate the contradictory statements as to material facts, but utterly ignores the explanatory evidence offered by the witness, as to former different statements.

Charge 13 is so manifestly erroneous that it requires no comment.

Charge 16 is vicious for several reasons. It is a mere argument, and for this reason should have been refused.. It invades the province of the jury. It charges upon the weight of evidence, and is misleading.

Charge 14 in our opinion asserts a correct proposition of law, if authorized by the evidence. The bill of exceptions fails to show that it contains all the evidence. When the record is in this condition, we are bound to presume there was other and sufficient evidence to justify the action of the trial court, if there might have been such other evidence properly introduced. There might have been evidence introduced on the trial, tending to corroborate Clara Clayton as to every material fact testified to by her. We cannot say there was not. If there was such evidence, then charge 14 was abstract and properly refused.

Affirmed.