Burkett v. State , 154 Ala. 19 ( 1908 )

SIMPSON, J.

The appellant was convicted of manslaughter in the second degree. The appellant insists that, inasmuch as the indictment was against said appellant and Robert (alias Bob) Bishop, the defendant was entitled to be tried jointly, and that it was error to try him alone without some proceeding* for a severance. Our statutes give the right to a defendant to sever and be tried alone, but do not give any right to a joint trial. This is a matter for the discretion of the court, and the various parties to the indictment may be severally, separately, and successively tried. — Jackson, et al. v. State, 104 Ala. 1, 3, 16 South. 523.

The demurrer to the indictment was properly overruled. — Coleman v. State, 151 Ala. 20, 44 South. 184; Smith v. State, 142 Ala. 14, 39 South. 329 (6th headnote) ; King v. State, 137 Ala. 47, 34 South. 683.

The doctor, being an expert, was properly allowed to testify as to whether the wound caused the death of Holsenback. — Sims v. State, 139 Ala. 74, 36 South. 138, 101 Am. St. Rep. 17.

In weighing the testimony of the defendant, the jury can consider that he is interested in the event of the suit, just as they would as to any other witness. Consequently there was no error in giving the first charge at the request of the state.

The second charge given at the request of the state asserts a correct principle of law — Roberts v. State, 68 Ala. 156.

Under the facts of this case, charge No. 3, given at the request of the state, contains a correct statement of the law, except that the first clause is too favorable to the defendant by the insertion of the word “reasonably;” so there was no error in giving it of which the defendant can complain. — Bostic v. The State, 94 Ala. 45, 10 South. 602; Surginer v. State, 134 Ala. 120, 125, 32 South, 277; Sherrill v. State, 138 Ala. 4, 15, 35 South. 129.

Charge No. 4, given at the request of the state, was properly given.

Charge No. 1, requested by the defendant, was properly refused. This charge has been frequently condemned by this court. — Compton v. State, 110 Ala. 24, 35, 20 South. 119.

There was no error in the refusal of the court to. give charge No. 2, requested by the defendant. The charge is elliptical; and the court had charged the law on the subject of character in substantially the same language in charges Nos. 5 and 6, given at the request of the defendant.

Charges Nos. 6 and 9, requested by the defendant, were properly refused. They omitted any reference to the duty to retreat.

The court properly refused charges 7, 11, and 25, requested by the defendant, being the general charge.

Charge No. 15, requested by the defendant, was properly refused. It omitted to hypothesize freedom from fault on the part of the defendant himself in bringing on the difficulty. The court had sufficiently charged on this subject in charges 16, 17, and 20, given at the request of the defendant.

Charge 18, requested by the defendant, was properly refused. Besides the fact that charges 16, 17, and 20 substantially cover charge 18, it is defective, in that Bishop may have “approached” Holsenback in a peaceful manner, with no intention of bringing on the difficulty, and yet afterwards brought it on, and also in that it makes no mention of what the defendant himself may have done to bring on the difficulty.

Charge 19 was properly refused. The court was not called upon to single out one item of the evidence and charge the jury on the effect of it.

It is unnecessary to consider charges 20, 21, and 24, as the defendant was convicted only of manslaughter in the second degree.

Charge 22 was properly refused. It was for the jury to determine, from the evidence, whether the blow which the defendant struck was with a knife, and whether it produced death.

Charges 27 and 29 were properly refused. They submitted to the jury for decision the question of law as to what facts or circumstances would have justified Bishop in taking the life of Holsenback.

Charge 34 is similar to, but not identical in language with, charge 10, which was aproved in the case of White v. State, 103 Ala. 72, 78, 83, 16 South. 63. But, even if the charge be substantially the same, it was not proper in this case, wherein the defendant was indicted for murder, under Avhich indictment he was liable to be convicted of any of the degrees of homicide. — Stoball v. State, 116 Ala. 454, 460, 23 South. 162.

Charges A and H, besides being mere arguments, are otherwise bad.- — Roberts v. State, 68 Ala. 156.

Charge I is a mere argument, and was properly refused.

The court erred in not giving charge II. — Hammond v. State, 147 Ala. 79, 41 South. 761.

Charge J does not assert any principle of law, but is a mere argument, and was properly refused.

Charge K is confused and misleading, and was properly refused.

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

Reversed and remanded.

Tyson, C. J., and Haralson and Denson, JJ., concur.