Orr v. State

• Decision Date: 07 June 1898
• Citation: 117 Ala. 69,23 So. 696
• Parties: ORR v. STATE.
• Court: Alabama Supreme Court

23 So. 696

117 Ala. 69

ORR v. STATE.

Supreme Court of Alabama

June 7, 1898

Appeal from circuit court, Colbert county; Thomas R. Roulhac, Judge.

Nancy Orr was convicted of murder, and appeals. Reversed.

James Jackson, L. C. Curry, and Edmund C. Winston, Jr., for appellant.

Wm. C Fitts, Atty. Gen., for the State.

COLEMAN J.

The defendant was tried and convicted of the offense of murder. During the trial, several exceptions were reserved to the rulings of the court, both as to the admission of evidence and instructions for the jury. At the request of the defendant, the judge charged the jury in writing as provided in section 3327 of the Code of 1896. This written charge by the judge is very lengthy, covering almost every phase of the law of homicide, and as applicable to the facts. It may be that we cannot give our unqualified approval of every proposition contained in the charge, but, under the view we take of the principle of practice applicable, the case must be reversed, without reference to the correctness of those portions to which exceptions were reserved. It is well settled that the court is not required to repeat charges already given. See the cases cited under section 3328 of the Code of 1896. Many of the charges refused, some of which, at least, asserted correct propositions of law, were indorsed "Refused because already given."

The question presented is whether the rule that the court is not required to repeat charges already given can be applied, when such charges, if given, were contained only in the written charge given in pursuance of the statute, as distinguished from written charges specially requested by the appellant. Section 3328, supra, is as follows: "Charges moved for by either party must be in writing and must be given or refused in the terms in which they are written; and it is the duty of the judge to write 'Given' or 'Refused' on the document and sign his name thereto which thereby becomes a part of the record, and charges which are given must be taken by the jury with them on retirement and those refused must be retained by the clerk." The provisions of this statute are not in terms made applicable to the written charge which may be required of the judge under the preceding section 3327, supra. The judge is not required to write "Given," and sign his name thereto; nor does the statute provide that this charge must be taken by the jury on retirement, nor is it expressly made a part of the record. In the case of Railroad Co. v Hall, 91 Ala. 112, 122, 8 So. 371, it is strongly intimated that the court, in writing, may qualify or explain his written charge, and that it is incumbent on the party objecting to any part of the written charge given by the court of state the ground of his...