McHan v. State

From a judgment of conviction as charged in the second count of the indictment defendant appealed to this court.

Numerous questions are presented on this appeal, but it could serve no good purpose to discuss them in detail, as it does not appear such discussion would be of any benefit to the bench or bar of the state as no new questions are involved, and such as are presented may not arise on a subsequent trial of this case.

It is conceded by the Attorney General, representing the state here, that there is no escape from reversing the judgment of conviction appealed from because of the refusal of the court to give at the request of defendant certain written charges hereinafter referred to.

Charge 3 appears to have been improperly refused. This exact charge was approved in the case of Green v. State (Ala.App.) 96 So. 651.¹ See, also, Doty v. State, 9 Ala. App. 21, 64 So. 170; Bell v. State, 89 Miss. 810, 42 So. 542, 119 Am. St. Rep. 722, 11 Ann. Cas. 431.

Refused charge 5 states a correct proposition of law. This charge has many times been approved by the Supreme Court. Taylor v. State, 149 Ala. 32, 42 So. 996; Goldsmith v. State,105 Ala. 8, 16 So. 933; Miller v. State, 107 Ala. 40, 19 So. 37; Newsom v. State, 107 Ala. 134, 18 So. 206; Bryant v. State, 116 Ala. 446, 23 So. 40. It was error to refuse this charge.

Refused charge 2 should have been given according to the following authorities: Kilgore v. State (Ala.App.) 95 So. 906;² Estes v. State, 18 Ala. App. 606, 93 So. 217; Mills v. State, 1 Ala. App. 76, 55 So. 331; Segars v. State, 86 Ala. 59,5 So. 558; Washington v. State, 58 Ala. 355.

Reversed and remanded.

¹ 19 Ala. App. 239.

² 19 Ala. App. 181.