Snyder v. State , 145 Ala. 33 ( 1906 )

ANDERSON, J.

The trial court did not err in overruling the motion to quash the.indictment. This identical question was considered in the case of (Coker v. State, 144 Ala. 28, 40 South. 516.

The trial court should have permitted the defendant to prove that the witness Dortch had been arrested and put in jail after the preliminary trial upon a charge of killing the deceased. The witness admitted having said at the preliminary trial that he did not see the shooting yet testified that he did on the trial, and the state was permitted to draw from him an explanation, and the defendant was entitled to show his arrest and imprisonment, which was a circumstance to be considered by the jury as affecting the credibility of tire witness.

Charge 1, requested by the defendant, was bad, and was properly refused. It has previously been held good in the cases of Gregg v. State, 106 Ala. 44, 17 South. 321, and Williams v. State, 114 Ala. 19, 21 South. 993 ; but said eases have been overruled by the case of Brown v. State, 142 Ala. 289, 38 South. 268, which said last case we hold is the authority upon this question, and which said authority also explains and qualifies the case of Washington v. State, 58 Ala. 355.

The trial court erred in refusing charge 3 requested by the defendant. The identical charge has been held to be good in the case of Kennedy v. State, 140 Ala. 1, 37 South. 90, and was not abstract, as there was evidence in the case at bar tending to show that the defendant was in imminent peril when he shot. The bill of exceptions recites: “The charges 1 and 3 were fully embraced in the oral charge of the court to the jury and coveréd by the same.” This fact cannot prevent a reversal upon this point, as the statute permits the parties to ask special written charges, which must be given, if correct; but this court has held that the trial court will not be reversed for refusing charges, even when correct, when mere repetitions of special charges previously given, but this rule does not prevail because the charge was embraced in or covered by the general charge of the court, either orally or in writing. — Orr v. State, 117 Ala. 69, 23 South. 696.

As this case must be reversed, we need not consider the ruling of the trial court with reference to the failure to place the name of juror Deer in the hat, etc., as proper care and prudence on the part of the court officials should prevent another omission of the name of a juror from the hat..

There is no merit in the other objections to the ruling of the trial court on the evidence.

The'judgment of the circuit court is reversed, and the cause remanded.

Keversed and remanded.

Haralson, Dowdell and Denson, JJ., concur.