Olive v. State

Decision Date20 May 1913
Citation8 Ala.App. 178,63 So. 36
PartiesOLIVE v. STATE.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Fayette County; Bernard Harwood, Judge.

Elmer Olive was convicted of manslaughter in the first degree, and he appeals. Affirmed.

The following are the charges referred to:

"(1) If, after considering all the evidence, the minds of the jury should be in a state of confusion as to defendant's guilt or innocence, you must find the defendant not guilty."
"(16) I charge you that evidence of threats is admissible in this case to enable the jury to determine who provoked the difficulty, for the law says that a man who has threatened is more likely to bring on a fight than another who may be in a good humor."

The charge in the third assignment of error is not numbered, but charge 16 is as above set out.

"(20) The state has introduced Dr. Collins, and when the state does this it vouches for the evidence of the witness, and you have the right and it is your duty to consider the statements of Dr. Collins as to what Olive said there at the time as to who brought on the difficulty."

"(22) If the jury believe the evidence in this case, they cannot find the defendant guilty of manslaughter in the first degree."

R.H. Scrivner, of Birmingham, for appellant.

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

THOMAS J.

This is the second appeal in this case--the former being reported in Olive v. State, 2 Ala.App. 77, 57 So. 66, where the judgment of conviction was reversed. On the subsequent trial the defendant was convicted of manslaughter in the first degree, and sentenced for five years. The only errors now urged are those alleged to have been committed by the trial court in the refusal of certain written instructions requested by defendant, and it is not necessary to an understanding of the disposition we make of these rulings that the facts of the case be reviewed or set out.

Under a recent decision of our Supreme Court, made in the case of A.G.S.R.R. Co. v. Robinson, 62 So. 813, where the subject is fully discussed and the cases reviewed, it is not reversible error for the trial court to refuse charges like that set out in the first assignment of error. A.G.S.R.R. Co. v. Robinson.

Neither did the court err in refusing the affirmative charge requested by defendant; for even assuming, contrary to the truth, that inferences from the facts proved by the state did not at all contradict defendant's version of the difficulty--he being the only eyewitness as to how it happened and took place--and...

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8 cases
  • Williams v. State
    • United States
    • Alabama Court of Appeals
    • October 7, 1952
    ...effect the holding in Cooley v. State, 233 Ala. 407, 171 So. 725. See also Coates v. State, 29 Ala.App. 616, 199 So. 830; Olive v. State, 8 Ala.App. 178, 63 So. 36; Denson v. State, 32 Ala.App. 554, 28 So.2d 174; Lewis v. State, 25 Ala.App. 188, 142 So. We are unable to bring ourselves to t......
  • Collier v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 27, 1973
    ...40, 49 So. 828; and this is true even though the defendant's testimony as to how the difficulty occurred is uncontradicted. Olive v. State, 8 Ala.App. 178, 63 So. 36. A defendant relying on self-defense is not under a burden of proving such issue to the reasonable satisfaction of the jury; ......
  • Weaver v. State, 6 Div. 850
    • United States
    • Alabama Court of Appeals
    • January 17, 1950
    ...the affray, required that the other elements of the doctrine of self defense be submitted to the jury. In the case of Olive v. State, 8 Ala.App. 178, 63 So. 36, 37, this court held: 'Neither did the court err in refusing the affirmative charge requested by defendant; for even assuming, cont......
  • Denson v. State
    • United States
    • Alabama Court of Appeals
    • November 26, 1946
    ... ... time when she was without a weapon of any kind ... In any ... event, a question on this factual was posed for the ... determination of the jury, and the affirmative charge in ... appellant's behalf was refused without error ... What ... this court observed in Olive v. State, 8 Ala.App ... 178, 63 So. 36, 37, is appropriate to restate here: ... 'Neither ... did the court err in refusing the affirmative charge ... requested by defendant; for even assuming, contrary to the ... truth, that inferences from the facts proved by the state did ... not ... ...
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