Stewart v. State , 133 Ala. 105 ( 1901 )

DOWDELL, J.

The only questions reserved in the record for our consideration grow out of the refusal of the trial court to give certain written charges requested by the defendant. Charge 15 was a correct statement of the law, and should have been given. — Croft v. State, 95 Ala. 3.

Written charges which ask for an acquittal postulated on the plea of self-defense without setting out the constituent elements of self-defense, should not be given. — Gilmore v. State, 126 Ala. 20; Rogers v. State, 117 Ala. 15; Miller v. State, 107 Ala. 40; McElroy v. State, 120 Ala. 274.

Under the plea of self-defense the burden of proof is on the defendant, and charges which place the onus of proof as to this issue on the State, are improper and should be refused.

Of the remaining charges refused to the defendant, numbered 5, 7, 12, 13, 14, 26, 33, 35, 36 ', 39, 40, it is sufficient to say that those not subject to the infirmities above stated, were otherwise objectionable as being argumentative, or when applied to the evidence in the case misleading.

Charge No. 12 requested by the defendant is not the ■same as charge 3, which was pronounced good by this court in Turner v. State, 124 Ala. 59. The difference is, that the charge there asked an acquittal upon a well founded doubt of the defendant’s guilt growing out of the evidence in the case, while the charge here asks for an acquittal upon a well founded doubt of the defend,ant’s guilt of any offense, etc. 'The superadded words, of any offense, rendered the charge misleading. The jury might have a well founded doubt of the defendant’s guilt of some; offense other than that charged' in the. indictment, and if they should, the charge requested, directs an acquittal.

For the refusal of the court to give charge No. 15 ¡the judgment must be reversed and the cause remanded.