Andrews v. State , 134 Ala. 47 ( 1901 )

DOWDELL, J.

On cross-examination- by the defendant of the State’s witness Bergin Harris, he was asked if he did not hear Bob Bogan (the deceased) on Sunday night, before the killing occurred, threaten defendant’s life. An objection to this question by the State was sustained. At this stage, no evidence had been offered showing any overt act or hostile demonstration on the part of the deceased at the time of the homicide, and the lulling of the court was, therefore, free from error. — Jones v. State, 116 Aa. 470, and cases there cited.

Charge 9 refused to the defendant was condemned by this court in Allen v. State, 111 Ala 80, as exacting too high a degree of proof. The legal proposition contained in the charge seems to have been approved in the earlier cases of the State v. Murphy, 6 Ala. 845, and Coleman v. State, 69 Ala. 52. We are disposed to adhere to Allen v. State, supra, as announcing the more reasonable rule.

Charge No. 10 likewise exacts too high a degree of proof and was properly refused. See cases cited in 1 Mayfield’s Dig. p. 173, subdiv, 17, § 186.

Charges No. 13 and 14 were properly refused. These charges asked for an acquittal if any one of the jurors had a reasonable doubt of the defendant’s guilt, notwithstanding the rest of the jurors were free from such doubt. Charges of this character were criticised in the case of Hale v. State, 122 Ala. 89, and the distinction clearly drawn between such and charges which in structed that there could not be a conviction so long as one of the jury entertained a reasonable doubt of the defendant’s guilt.- — See also Pickens v. State, 115 Ala. 42; Cunningham v. State, 117 Ala. 60.

There is no error in the record.

Affirmed.