Austin v. State
| Decision Date | 20 April 1906 |
| Citation | 145 Ala. 37,40 So. 989 |
| Parties | AUSTIN v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Clarke County; John T. Lackland, Judge.
"To be officially reported."
Howard Austin was convicted of manslaughter, and he appeals. Affirmed.
The defendant was indicted for killing Jeff Glover, tried and convicted of manslaughter in the first degree, and sentenced to the penitentiary for five years. The defense was that the killing was accidental. The defendant requested the following written charges, which the court refused: Charge 2: "The court charges the jury that in considering the guilt or innocence of this defendant they may take into consideration the fact that no previous difficulty between the defendant and deceased has been shown by the evidence." Charge 11 "If the jury believe the evidence, they cannot find the defendant guilty of any offense of a higher grade than manslaughter in the second degree." Charge 15: "If the jury believe from the evidence the shooting was not intentional, and that the defendant was not intentionally pointing the gun at the deceased at the time it fired the fatal shot, they must acquit him, even though they may find that he was carelessly handling the gun, unless they further find from the evidence that his carelessness was gross and aggravating." Charge 17: "The court charges the jury that they cannot infer malice from the use of a deadly weapon, if the evidence shows any circumstances from which a want of malice may be inferred."
W. D Dunn and Wilson & Aldridge, for appellant.
Massey Wilson, Atty. Gen., for the State.
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...
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Thomas v. State
... ... the charge was favorable to the defendant. Likewise it may be ... said, in respect to the last sentence in the charge, if there ... is error in it, it is not error prejudicial to the defendant ... Fitzgerald's Case, 112 Ala. 34, 20 So. 966; Austin's ... Case (Ala.) 40 So. 989, 3 L. R. A. (N. S.) 822 ... We come ... now to consider the charges refused by the court to the ... defendant. Charge 5, besides being argumentative, is ... abstract; there being nothing in the record to show that the ... mother of defendant refused to ... ...
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... ... selected from the list served on him, as far as practicable ... There must be a cause." Long v. State, 86 Ala ... 36, 40, 5 So. 443; ... [53 So. 217] Scott v. State, 133 Ala. 112, 115, 32 So. 623; ... Williams v. State, 144 Ala. 14, 17, 40 So ... argumentative and accentuating improperly certain parts of ... the evidence. Austin v. State, 145 Ala. 37, 40, 40 ... So. 989; Hill v. State, 156 Ala. 3, 6, 10, 46 So ... 864; W. U. Tel. Co. v. Benson, 159 Ala. 256, 258, ... 272, ... ...
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Terry v. State, 8 Div. 957
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