Jackson v. State , 136 Ala. 22 ( 1902 )

DOWDELL, J.

It was proper for the court in its general charge to instruct the jury on the law of murder in the first and second degrees, and consequently no error was committed in so doing. — Williams v. State, 130 Ala. 112; Gafford v. State, 125 Ala. 8; Brown v. State, 109 Ala. 70.

There was no1 error in .the court’s explaining the written charges given at the request of the defendant as to the meaning of “reasonable doubt.” This was not a violation of the statute which requires that charges moved for in writing by either party must be given or refused in the. terms in which they are written. — § 3328, Code of 3896; Williams v. State, 98 Ala. 22; Fuller v. State, 117 Ala. 200; Lowe v. State, 88 Ala. 8; and authorities cited in note to above sec.tion of the Code

-Charge 20 given at the request of the solicitor correctly stated the law. A like charge was passed upon and pronounced good, in the case of Prater v. State, 107 Ala. 27.

The giving of charge 21 at the instance of the solicitor,' was also free from error. — McElroy v. State 77 Ala. 95; Winter v. State, 123 Ala. 1, 12.

The giving of charge 22' requested by the solicitor was likewise free from error. — Prater v. State, supra; Thomas v. State, 106 Ala. 19; Rhea v. State, 100 Ala. 119; Heath v. State, 99 Ala. 79.

Charge 2 requested by the defendant was elliptical and misleading, and was, therefore, properly refused.

■Charge 6 requested by the' defendant was argumentative and for that reason, if no other, the action of the court in refusing it, was free from, error.

Charge 36 requested by the defendant was properly refused. What was said in the case of Osborne v. State, 125 Ala. 106, condemning this charge, is an-plicable here. Tn that case, we-said, quoting from Moore’s case, 68 Ala. 360: “When the character of a witness is assailed, or he is otherwise impeached as being unworthy of credit, it is entirely within the province of the jury, as the exclusive judge's of the facts, to say what degree of weight or credibility shall be given to his testimony. It does not lie in the mouth of any court to instruct the jury as a matter of law that they cannot convict on such testimony unless it is corroborated.”

Charge 3 refused to the defendant was argumentative as well as misleading, and its refusal by the court was free from error. A like charge was condemned by this court in Hornsby v. State, 94 Ala. 55, 67.

There being evidence on the part of the State, which if believed by the jury was sufficient to authorize a conviction, the general affirmative charge asked by the defendant, was, of course, properly refused.

The evidence tended to show that the deceased was hanged by a mob1, and that the. defendant participated in the lynching. Under this evidence, the solicitor in his remarks to the jury, and which were objected to by the defendant, did not exceed the bounds of legitimate argument. — Lide v. State, 133 Ala. 43; Brown v. State, 121 Ala. 9; McNeil v. State, 102 Ala. 121; Green v. State, 97 Ala. 59; Cross v. State, 68 Ala. 476.

Charge 1 requested by the defendant correctly stated the law and should .have been given. Similar charges have been passed upon by this court and pronounced good in the following cases: Churchwell v. State, 117 Ala. 124; Burton v. State, 115 Ala. 1; A. G. S. R. R. Co. v. Frazer, 93 Ala. 45. For the error committed in refusing to give this charge, the judgment will be reversed and the cause remanded.

Reversed and remanded.