Nicholson v. State , 117 Ala. 32 ( 1897 )

McCLELLAN, J.

There was evidence adduced which tended to show that Ed. Batty and Charley Nicholson shot and killed the deceased. The theory of the State was, that even if this were so, the defendant was yet guilty for that he aided and abetted in the homicide, and there was evidence from which it might have been so inferred. But, on'the other hand, there was testimony for the defendant which tended to show that he had no connection with the offense, and that all he did on the occasion of its commission was to put the deceased out of the room where a dance was going on, and where the deceased was. endeavoring and threatening to make serious trouble, immediately before the shooting occurred. On this state of case the 2d charge refused to defendant was clearly not abstract. It was as follows: “The-court charges the jury, that if the jury believe from all the evidence that Ed. Batty and Charley Nicholson shot and killed Stude (Clarence) McConnell, and'that defendant did no more than try to keep peace the night of the shooting, then the defendant is not guilty, and the jury must acquit the defendant.” And we are unable to conceive why it was not given. Its refusal was error.

Charge 5 requested for defendant might have misled the jury to the conclusion that if. they had a reasonable doubt of defendant’s gui]t growing out of.a certain part of the evidence they should acquit him, even though such doubt were dissipated by other evidence, or did not exist upon a consideration of the whole evidence.

The remaining charges refused to the defendant are manifestly bad ; some of them inherently and affirmatively, others as being abstract, and others as being argumentative.

The court committed no error - in its action upon the charges requested by the prosecution.

As the matter is presented in the bill of exceptions we fail to see the pertinency of the testimony of the witness Julia Newsome that she “heard the defendant say semething to the deceased, and the deceased replied: T be d — d if I do it.’ ”

There is no merit in the other exceptions to the court’s rulings on the admissibility of testimony.

Reversed and remanded.