Stallworth v. State
| Decision Date | 23 April 1908 |
| Citation | 155 Ala. 14,46 So. 518 |
| Parties | STALLWORTH v. STATE. |
| Court | Alabama Supreme Court |
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:
S. H Gillis, for appellant.
Alexander M. Garber, Atty. Gen., for the State.
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 self-correcting; and so, also, is the omission of the word "is" in the usual formula "whose name is to the grand jury unknown."
The oral request for the general charge, of course, could not be considered. Dannelley v. State, 130 Ala. 132, 30 So 452. There was no error in refusing to give the general charge in favor of the defendant.
Charge 5, requested by the defendant, besides being defective in having the word "of" where there should have been an "if," is also bad because it bases a failure to convict solely on the evidence produced by the prosecution whereas, there...
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