Burkett v. State , 215 Ala. 453 ( 1927 )

Counsel representing defendant have assigned for error two rulings on questions of evidence. It is not considered that they need special treatment. In our opinion there is no reversible error shown by either ruling.

As for the exception reserved on the solicitor's argument to the jury, the court did all that was necessary to correct the argument and place the jury in a position to consider the case properly — if, indeed, correction was necessary — when defendant's objection was sustained and the statement excluded from the jury.

Charges 3 and 8 were elliptical. Moreover, the statements therein of law which, we may assume, defendant sought to get before the jury were, in better form, covered by the court's oral charge, and by special instructions given on defendant's request.

Charges 10 and 30, requested by defendant, dealt with the subject of self-defense. These charges ignored the doctrine of retreat. Similar charges giving proper place and effect to the doctrine of retreat as an element of self-defense were given by the court.

Defendant's charge 26 was refused without error. We assume that by "suspicious facts" the charge intends questionable circumstances, i. e., facts that might or might not tend to inculpate defendant according to the point of view. But the state's case was far from depending on proof of such circumstances. There was, indeed, abundant and undisputed evidence that defendant had shot and killed deceased, and he admitted the killing. His defense was that deceased had first fired upon him, and that he had acted in self-defense, or, at worst, that he was guilty of manslaughter only. In this posture of the case it is not perceived that the charge in question could have served a proper purpose. Rather it tended to mislead the jury to think that some of the facts in evidence, as, for example, that defendant went to the place of the homicide heavily armed, was a mere suspicious circumstance, and needed no consideration by the jury. This charge was therefore refused without error. Mitchell v. State, 129 Ala. 38, 30 So. 348.

Charges 28, 29, 32, 33, and 36 were charges on the subject of reasonable doubt as to which the court had fully instructed the jury by its oral charge and by special instructions. There was no error as to these charges.

Defendant's charge 34 was properly refused. Time was when this charge had approval, but, latterly, the court has been of the opinion that this and similar charges might be refused without error. Ex parte Davis, 184 Ala. 26, 63 So. 1010.

So of charge 35. A verdict of conviction cannot be reached as long as a reasonable doubt persists in the mind of a single juror. But the charge seems to mean more than that, and error will not be affirmed of its refusal.

The reasons for the ruling against this assignment of error are satisfactorily stated in Ware v. State, 108 So. 645,¹ and in Ex parte State ex rel. Attorney General, 213 Ala. 390,104 So. 773. Furthermore, it pretermits consideration of the evidence. Davis v. State, 188 Ala. 69, 66 So. 67.

It is insisted that the general charge should have been given for the reason that there was no proof of venue. If it be conceded that there was no such proof, still that reason for asking the charge was not drawn to the attention of the court, and error cannot be predicated of the refusal on that ground. Circuit court rule 35; Watts v. State, 204 Ala. 372, 86 So. 70; Ratliff v. State, 212 Ala. 410, 102 So. 621.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.

¹ 21 Ala. App. 407.