Orr v. State

SAMFORD, J.

Charge 1, requested by the state, asserts a correct legal proposition, the giving of which by the court was not error. Of the three requisites necessary to establish a plea of self-defense, in such sort as that it may generate a reasonable doubt of defendant’s guilt, after a consideration of the entire evidence, the first is that the defendant was entirely free from fault in bringing on the difficulty. True, the burden of proving this, that the defendant was not free from fault, is on the state, but that does not affect the rule as stated. 1 Mayfield Dig. p. 807, par. 8; Vaughn v. State, 17 Ala. App. 383 , 84 So. 879 . Moreover, the charge when given became a part of the court’s oral charge, which dealt' fully with .the law of self-defense.

Charge 4 is palpably an argument, and might have been refused, but is not error to a reversal, and charges 5 and 7, given at the instance of the state, are so clearly the law as not to need discussion.

Charge 9, given at the request of the state, was approved in Prater v. State, 107 Ala. 27 , 18 So. 238 .

Charge B, requested by the defendant, was invasive of the province of the jury.

Charge E, requested by 'defendant, was properly refused. If the killing, though an accident, was done while the defendant was making an unlawful assault, he would be guilty of some degree of criminality, and for such could be convicted under this indictment. Sanders v. State, 105 Ala. 4 , 16 So. 935 .

The vice of charge 1, requested by defendant, lies in the fáct that an actual intent to kill is not an essential element necessary to a conviction, if the defendant was at the time engaged in an unlawful act.. Sanders v. State, 105 Ala. 4 , 16 So. 935 ; Barnes v. State, 134 Ala. 36 , 32 So. 670 .

• Charge F was covered by given, charge 11 and by general charge of the court.

Charges 2, 3, 4, 5, 18,'. and 20 aré invasive of the province of the jury. The evidence was conflicting. West v. State, 16 Ala. App. 117 , 75 So. 709 .

Charge 6 is not predicated upon a consideration of all- the evidence.

Charges 7 and 10 assume as a fact that the oil can, which was the instrument used by defendant in causing the death of deceased, was not a deadly weapon. Under the facts of this case this was a question for the jury. Winter v. State, 123 Ala. 1 , 26 So. 949 .

Charge 12 assumes the homicide to have been accidental, and that the instrument producing death was not a deadly weapon. The charge was bad. 1 Mayfield Dig. p. 175, § 22.

Charges 15 and 16 -are covered by given charge 11.

Charges 21, 23, 26, and 28 are palpably arguments.

Charge 24 is so manifestly bad as not to require citation of authority.

That part of the court’s oral charge to which exception was reserved, if tending to error, was corrected by the judge by full' explanation before the jury retired. It is a rule too well settled to require discussion here that a defendant may.not testify to an undisclosed motive for doing an unlawful act. Brown v. State, 7 Ala. App. 26 , 61 So. 12 .

*192 When a witness has violated the rule, and remained in the court room, and in the hearing of the • other witnesses, the discretion of allowing such witness to testify is ■with the trial 'court, and in the absence of an abuse of this discretion will not be reversed. Webb v. State, 100 Ala. 47 , 14 So. 865 .

We find no error in the record, and the judgment is affirmed.

Affirmed.