Bragg v. State, 4 Div. 20.

CourtSupreme Court of Alabama
Citation236 Ala. 270,183 So. 682
Docket Number4 Div. 20.
PartiesBRAGG v. STATE.
Decision Date21 April 1938

183 So. 682

236 Ala. 270


4 Div. 20.

Supreme Court of Alabama

April 21, 1938

Rehearing Denied June 16, 1938.

Certiorari to Court of Appeals.

John H. (alias Johnnie) Bragg was convicted of an offense, and appealed to the Court of Appeals. To review and revise a judgment and decision of the Court of Appeals, 183 So. 680, reversing the judgment of conviction, the State, by its Attorney General, applies for certiorari.

Writ awarded; reversed and remanded.

A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.

J. C. Fleming and J. M. Rowe, both of Elba, for respondent.

GARDNER, Justice.

The reversal of the judgment of conviction by the Court of Appeals is rested upon the refusal of charge 6, requested by defendant, and reproduced in the opinion of that court.

That the concluding clause as to the burden of proof resting upon the State, under the stated circumstances, to show defendant was not free from fault, stated a correct principle, is of course well understood, and not here controverted. Bluitt v. State, 161 Ala. 14, 49 So. 854; Richardson v. State, 191 Ala. 21, 68 So. 57.

But in consideration of refused charges, to save error, the rule of strict construction has been here approved, Jebeles-Colias Confectionery Co. v. Booze, 181 Ala. 456, 62 So. 12, and it has been held enough to justify the refusal of a charge that it does not speak "in the correct and appropriate terms of the law." Ex parte State, ex rel. Atty. Gen., Bush v. State, 211 Ala. 1, 100 So. 312.

The State insists the charge is subject to criticism for a failure to qualify defendant's belief as an honest belief, as so designated in Bluitt v. State, supra; Mathews v. State, 136 Ala. 47, 33 So. 838; Tyler v. State, 207 Ala. 129, 92 So. 478; Cheney v. State, 172 Ala. 368, 371, 55 So. 801; Walker v. State, 220 Ala. 544, 126 So. 848; O'Rear v. State, 188 Ala. 71, 66 So. 81.

The point is well taken. Charge 27 considered in Davis v. State, 214 Ala. 273, 107 So. 737, 741, is in all respects substantially the same as charge 6 herein. And speaking of this charge, the opinion in the Davis Case, supra, said: "Charge [183 So. 683.] 27 was properly refused. It was defective, as this court has often held, because it omitted to state that the belief of necessity to kill must be honestly entertained as well as reasonable. Griffin v. State, 165 Ala. [29] 45, 50 So. 962." Further elaboration is unnecessary. We may add,...

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4 cases
  • State v. Jones
    • United States
    • Supreme Court of Oregon
    • 8 d3 Setembro d3 1965
    ...because defendant was [241 Or. 163] not free from fault. Minix v. Commonwealth, 266 Ky. 801, 100 S.W.2d 825; see also Bragg v. State, 236 Ala. 270, 183 So. 682; Edwards v. State, 58 Okl.Cr. 15, 48 P.2d Therefore, the use of the word 'difficulty' in the instruction without informing the jury......
  • Metropolitan Life Ins. Co. v. Fox, 1 Div. 644
    • United States
    • Alabama Court of Appeals
    • 16 d2 Dezembro d2 1952
    ...and appropriate terms of the law.' To save error in their refusal the rule of strict construction should be applied. Bragg v. State, 236 Ala. 270, 183 So. There may be objectional features which could be pointed out in both charges, but we entertain the view that each of them was substantia......
  • Griffin v. State, 8 Div. 655.
    • United States
    • Alabama Court of Appeals
    • 21 d2 Junho d2 1938
    ...cases in the Supreme Court, the last of which being Ex parte State, ex rel. Attorney General, (John H. Bragg, alias, v. State of Alabama, 183 So. 682), in which the Supreme Court, speaking through Gardner, Judge, said: "The State insists the charge is subject to criticism for a failure to q......
  • Morris v. State, 6 Div. 702.
    • United States
    • Alabama Court of Appeals
    • 24 d2 Maio d2 1949
    ...import because of failure to qualify the belief of necessity to kill must be honestly entertained as well as reasonable. Bragg v. State, 236 Ala. 270, 183 So. 682. No error resulted in the court's refusal to give written requested charges Nos. 12 and 16. Bankhead v. State, 33 Ala.App. 269, ......

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