Olive v. State

• Decision Date: 20 May 1913
• Citation: 8 Ala.App. 178,63 So. 36
• Parties: OLIVE v. STATE.
• Court: Alabama Court of Appeals

63 So. 36

8 Ala.App. 178

OLIVE v. STATE.

Court of Appeals of Alabama

May 20, 1913

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...