Stallworth v. State

• Decision Date: 23 April 1908
• Citation: Stallworth v. State, 155 Ala. 14, 46 So. 518 (Ala. 1908)
• Parties: STALLWORTH v. STATE.
• Court: Alabama Supreme Court

46 So. 518

155 Ala. 14

STALLWORTH v. STATE.

Supreme Court of Alabama

April 23, 1908

Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

Jack Stallworth was convicted of murder, and appeals.Affirmed.

The indictment reads that Jack Stallworth"unlawfully and with malice aforethought kill a negro man whose name to the grand jury unknown by shooting him with a pistol," etc.Demurrers raised the question of the insufficiency of the indictment on account of the use of the word "kill," instead of the word "killed," and the omission of the word "is."

Charge 5, refused to defendant, is as follows: "The only foundation for a verdict of guilt in this case is that the entire jury shall believe from the evidence beyond a reasonable doubt and to a moral certainty that the defendant is guilty as charged in the indictment, to the exclusion of every probability of his innocence and every reasonable doubt of his guilt; and of the prosecution has failed to furnish such measure of proof and to so impress the minds of the jury with his guilt they should find him not guilty."

Other charges so refused are: "(7) There may be an attempt without an intent to murder, and therefore, if the jury find from the evidence that there was an attempt without an intent, then they can bring in the verdict for assault and battery.(8) The fact must raise the presumption of an intent to murder, and if the jury find that the state has failed in this then they must acquit the defendant of assault with intent to murder."

S. H Gillis, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

SIMPSON J.

The appellant was convicted of the crime of murder.The demurrer to the indictment was properly overruled.The charge in the indictment that the defendant"kill" the deceased is so plainly a clerical mistake in leaving off "ed" that it is...