Austin v. State , 145 Ala. 37 ( 1906 )

WEAKLEY, C. J.

The charge was murder, and the defense was that the killing was entirely accidental. Appellant was convicted of manslaughter in the first degree.

In response to a question propounded by the solicitor to the witness Rose Thomas, “Whether defendant pointed the gun at her just before the shooting,” she answered “that the gun was pointed at her neck, and she told the defendant to move it, and he did so.” There was an objection to the question, and an exception to the court’s action in overruling the objection. On cross-examination the witness stated “that defendant did not point the gun at her, but that in moving around the gun was pointed at her neck, and that she told him to move it, and he did so.” Conceding, for argument’s sake merely, that it would have been improper to show that the defendant, just before the killing, pointed his gun at another person present, yet it is evident that there is no- conflict between the statement in chief and that on the cross-examination. Construing both- together, the effect was not unfavorable to defendant, and the evidence was incapable of injuring him. The question, therefore, produced no incriminating fact, and was harmless.

No exception was reserved to- the action of. the court in allowing a question to the same witness whether the defendant pointed the gun at any body else that night, just before or about the time of the shooting, nor to the overruling of a motion to exclude the answer to the question. No question is therefore presented for review growing out of these rulings of the court.

Charge 2 was an argument. We have often condemned charges asserting that the jury may take into consideration this, that, or the other fact. Of course, the jury has the right to look to and consider any fact adduced before them; and, while it is not erroneous to give such charges, the trial court is under no duty to give them, and they should be refused, because intended merely to accentuate, emphasize, ahd give additional force to argument of counsel. — Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904. It is a useless consumption of time and space to insert such refused charges in a bill of exceptions, and we trust the rule is now well enough understood to prevent similar refused charges being brought before us hereafter for review.

Charge 11 was properly refused. There was evidence on behalf of the State to the effect that the .defendant pointed th-e gun at the deceased and fired it without .just cause or good excuse, and it would have authorized a verdict for murder, certainly in the second degree, and perhaps in the first degree.

Charge 15 was erroneous in requiring a finding of “gross and aggravated” negligence in handling the gun to make the defendant guilty of any degree of crime embraced in the indictment, if the killing were unintentional ; whereas gross negligence alone- was sufficient for this purpose. — Fitzgerald v. State, 112 Ala. 34, 20 South. 966.

Refused charges 16 and 18 were fully covered by given charges 19 and 14.

Charge IT invades the province of the jury. Futhermoro, the defendant was acquitted of murder, and this shows the jury neither inferred nor found malice to exist. Affirmed.

Haralson, Dowdell and Denson, JJ., concur.