Chestnut v. State

• Decision Date: 11 February 1913
• Citation: Chestnut v. State, 7 Ala.App. 72, 61 So. 609 (Ala. App. 1913)
• Parties: CHESTNUT v. STATE.
• Court: Alabama Court of Appeals

61 So. 609

7 Ala.App. 72

CHESTNUT v. STATE.

Court of Appeals of Alabama

February 11, 1913

On Application for Rehearing, April 8, l913

Appeal from Shelby County Court; E.S. Lyman, Judge.

Creola Chestnut was convicted of assault with intent to murder, and she appeals. Affirmed.

The assault is alleged to have been made on Alleen Denson by shooting at her, and the witness Denson was permitted to state that the shot missed her, but hit her daughter.

Charges refused to the defendant are as follows:

(1) "The court charges the jury that if the state's witnesses have exhibited prejudice or anger against the defendant, and satisfied you that they have not testified truly, and are not worthy of belief, and you think their testimony should be disregarded, you may disregard it altogether."

(3) "If any of the state's witnesses have exhibited malice against the defendant or anger, or have testified to contradictory statements, and thereby satisfied the jury that they have not testified truly, and they are not worthy of belief, and the jury think their testimony on these beliefs may be disregarded, they may disregard it altogether."

(5) "If you should not be willing to act upon the evidence in this case in relation to matters of most solemn importance to your own interest, then you should find the defendant not guilty."

(6) Practical duplicate of 5.

(M) "The court charges the jury that, if you believe from the evidence that Alleen Denson at the time of the shooting used opprobrious language to the defendant, the jury may consider such words as bearing upon whether or not the shooting was maliciously done."

(N) "The court charges the jury that you may look to the fact, if it be a fact, that Alleen Denson used opprobrious language addressed to defendant at the time of the shooting as a rebuttal of malice."

(O) Practically same as N.

(P) Same as N, except that it uses the word "cursed," instead of opprobrious language.

Riddle & Ellis, of Columbiana, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

The refusal of the court to exclude that part of the answer of the state's witness Alleen Denson to the effect that when shooting at the witness, the defendant shot her daughter, was without prejudice to the defendant, as this fact was shown by the testimony of other witnesses without objection, was not denied by the defendant, and was without conflict in the evidence. Besides, there was but one difficulty, and the matter testified to was part of the res gestae. McCoombs v. State, 151 Ala. 7, 43 So. 965. Charge No. 1 is abstract, in that it includes all the state's witnesses. Naugher v. State, 60 So. 458.

It is not clear what is meant by the language used in charge No. 3 "and the jury think their testimony on these beliefs should be disregarded," etc. The charge is involved and confusing, and calculated to mislead the jury. Such charges are properly refused. Hill v. State, 156 Ala. 3, 46 So. 864; Rigsby v. State, 152 Ala. 9, 44 So. 608.

Charges 5 and 6 are argumentative, and are of that class of charges which may be either given or refused without the court's thereby being put in error. Phillips v. State, 162 Ala. 14, 50 So. 194; Amos v. State, 123 Ala. 50, 26 So. 524; Montgomery v. State, 169 Ala. 12, 53 So 991.

The proposition of law embodied in requested charges AA and S is covered by given charge D.

Charges M, N, O, and P are not correct expressions of the law. An intent to murder is an essential element of the offense charged, and it is sufficient to constitute the offense if the assault, if it had not failed of its intended effect and had terminated fatally, would have resulted in murder in either degree. Lawrence v State, 84 Ala. 424, 5 So. 33. And, as opprobrious words can never reduce an unlawful homicide from murder to manslaughter (Smith v. State, 103 Ala. 4, 15 So. 843), it follows that "sudden passion from an immediate insult" is not enough to repel the imputation of malice under a charge for assault with intent to murder. (Lane v. State, 85 Ala. 11, 4 So. 730).

We have discussed all the matters insisted upon as error in brief of counsel for the appellant, and discover no reversible error in the record, and the case will be affirmed.

Affirmed.

On Application for Rehearing.

The appellant's counsel in their application for a rehearing in this case make earnest insistence that charge No. 1 requested by the defendant and refused is not abstract, and that it should have been given, even though it includes and applies to all of the state's witnesses.

The evidence set out in the record shows that the participants in the difficulty resulting in the assault for which the defendant was being prosecuted were colored women, and that one of the...