Favors v. State

• Decision Date: 05 June 1945
• Docket Number: 6 Div. 146.
• Citation: 32 Ala.App. 139,22 So.2d 914
• Parties: FAVORS v. STATE.
• Court: Alabama Court of Appeals

22 So.2d 914

32 Ala.App. 139

FAVORS v. STATE.

6 Div. 146.

Alabama Court of Appeals

June 5, 1945

Beddow Ray & Jones, of Birmingham, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst Atty. Gen., for the State.

The following charges were refused to defendant:

'I. I charge you, gentlemen of the jury, that if the circumstances attending the killing of deceased were such as would justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not retreat without adding to his peril, and defendant believed such to be the case, he was justified in stabbing deceased, although he was not in actual danger, and retreat would not have added to his peril; and, if defendant acted under such circumstances, the burden of showing that defendant was not free from fault in bringing on the difficulty is on the State.'

'13. I charge you, gentlemen of the jury, that if the evidence in this case is such as to leave the jury in a reasonable doubt of the defendant's guilt, or if after hearing all the evidence in this case the minds of the jury be in a state of doubt and confusion, your verdict must be for the defendant.'

'19. A reasonable doubt is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If, under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you state to yourselves, I doubt if he is guilty, then it is a reasonable doubt, and you should acquit the defendant.'

'23. I charge you that if, after looking at all the evidence in this case, your minds are left in such a state of doubt or uncertainty that you cannot say, beyond a reasonable doubt, whether the defendant acted upon a well-founded and reasonable belief that it was necessary to take the life of the deceased to save himself from great bodily harm or death, or that he stabbed before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find.'

CARR, Judge.

Appellant was indicted on a charge of murder in the first degree and was convicted of manslaughter in the first degree. He claimed self-defense.

When the State had concluded its evidence in chief, appellant moved to exclude the testimony, taking the position that it had not been shown that the knife wounds inflicted by the defendant caused the death of the deceased. In this contention we cannot concur.

At the time the motion was tendered, the State had developed without conflict in the evidence, that the fatal difficulty, the basis for the prosecution, occurred in a Railway Express car. Deceased was stabbed by the defendant four times, twice in the chest, once in the left shoulder, and again in the right leg. Deceased died within a few minutes at the scene of the encounter. In fact, when the last stab blows were inflicted, he fell immediately to the floor of the car and died forthwith. Gary v. State, 18 Ala.App. 367, 92 So. 533; Walden v. State, 29 Ala.App. 462, 198 So. 261.

During his argument to the jury the solicitor stated: 'The defendant has admitted that he struck the fatal blow.' Over timely objections the trial court allowed this statement to remain in the argument. While testifying in his own behalf the defendant deposed: 'Yes, sir, dazed me; and when he hits me with the wrench I goes around Mr. McGahey, and I stabbed him standing up, before he could hit me the second lick with the wrench.' Clearly, with this evidence before the jury, the solicitor was well within the rule appertaining.

At the conclusion of the oral charge to the jury, appellant's counsel stated: 'If your honor please, the defendant excepts to the definition of each degree of unlawful homicide, as outlined by the court in the oral charge down to and including when the court said, 'if the defendant is guilty of anything at all in this case he would have to be guilty of something more than manslaughter in the second degree.'' There are four record pages within this inclusion. Several statements are taken therefrom, and insistence is made that error should be predicated because the court below was not authorized to so charge the jury.

The rule will not permit a review of exceptions interposed to the court's oral charge in a descriptive rather than specific manner. The duty is imposed upon counsel, when exceptions are sought to the oral charge of the court, to so specify the claimed offending portions that the trial judge will be apprised of the verbiage of his charge against which the exceptions are directed. Brock v. State, 28 Ala.App. 52, 178 So. 547; Hall v. State, 11 Ala.App. 95, 65 So. 427; Rigsby v. State, 152 Ala. 9, 44 So. 608; Cowart v. State, 16 Ala.App. 119, 75 So. 711; Forsythe v. State, 19 Ala.App. 669, 100 So. 198.

Among the written charges requested and refused to appellant is the affirmative charge. Without doubt or uncertainty a jury question was posed by the evidence in the case.

Charge numbered one refused to defendant was held to...