Orr v. State , 117 Ala. 69 ( 1897 )

COLEMAN, J.:

The defendánt was tried and convicted of the offense of murder. During the trial, several exceptions were reserved to the rulings of the court, both as to the admission of evidence, and instructions to the jury. At the request of the defendant, the judge charged the jury in writing as provided in section 3327 of the Code of 1896. This written charge by the judge is very lengthy, covering almost every phase of the law of homicide and as applicable to the facts. It may be that we cannot give our unqualified approval of every proposition contained in the charge ; but under the view wb take of the principle of practice applicable, the case must be reversed, without reference to the correctness of those portions to which exceptions were reserved. It is well settled, that the court is not required to repeat charges already given. (See the cases cited under section 3328 of the Code of 1896.) Many of the charges refused some of which at least asserted correct propositions of law, were indorsed “Refused because already given,” The question presented is, whether the rule, that the court- is not required to repeat charges already given, can be applied, when such charges if given were contained only in the written charges given in pursuance of the statute, as distinguished from written charges specially requested by the appellant. Section 3328.supra is as follows : “Charges moved for by either party must be in writing and must be given or refused in the terms in which they are written; and it is the duty of the judge to write ‘given’ or ‘refused’ on the documents and sign his name thereto, which thereby become a part of the record, and charges which are given must be taken by the jury with them on retirement, and those refused must be retained by the clerk.” The provisions of this statute, are not in terms made applicable to the written charge which may be required of the judge under the preceding section 3327 supra. The judge is not required to write “Given” and sign his name thereto, nor does the .statute- provide that this charge must be taken by the jury on retirement, nor is it expressly made a part of the record. In the case of L. & N. R. R. Co. v. Hall, 91 Ala. 112, 122, it is strongly intimated that the court, in writing, may qualify or explain his written charge, and that it is incumbent on the party objecting to any part of the written charge given by the court, to state the ground of his objection, so as to give the judge the opportunity to correct the same. We have been thus particular to note the different rules which apply to the charge of the court given in pursuance of section 3327 and those specially requested in writing by either party under section 3328 of the Code. We do not decide the question as to whether the jury must take with them on their retirement the -written charge given by the judge, as that question is not before us, and it does not appear whether said charge was taken out by the jury. What we do decide is, that special charges requested in writing and “Given” must be taken out by the jury, and the party has the right to have such charges before the jury for their examination and consideration, while charges marked “Eefused” do not go before the jury. It would have been a difficult matter for the defendant to have framed a charge under section 3328 supra, and which the jury should have taken out in their retirement, not covered by the written charge. It is much the safer rule, and more in accord with the spirit of our statutes, to hold that a charge cannot be properly ‘ ‘refused’ ’ on the ground that the same charge has been given, when it was given only in the general written charge of the court under section 3327 supra. The record leaves no doubt that the trial judge in refusing charges on the ground that such charges had already been given, had in his mind his general written charge. Take charge No. 6 requested .by the' defendant and refused for the reason stated. It is as follows : “If upon the whole evidence, the guilt of the defendant is not established beyond a reasonable doubt, the jury must acquit.” We might refer to others, equally clear and refused upon the ground that the charge had been given, and yet the charge is not to be found except in the general written charge of the judge.

It was competent for the witness to state, that the cartridges in the pistol not exploded, looked as if they had been recently snapped. He might have been cross-examined as to the facts.

It was not competent for the witness to testify that in his opinion a rock the size of that thrown by deceased was calculated to produce death or great bodily harm, at the distance from which it was thrown. This character of evidence is not expert evidence, and the witness was not an expert, and was no more competent to form a conclusion than the members of the jury. The admission of such testimony would have amounted to a mere substitution of his conclusion for the conclusion of the jury.

There is no merit in the exceptions reserved upon questions of evidence.

Reversed and remanded.