Wilson v. State

• Decision Date: 30 June 1925
• Docket Number: 5 Div. 566
• Citation: 104 So. 876,21 Ala.App. 35
• Parties: WILSON et al. v. STATE.
• Court: Alabama Court of Appeals

104 So. 876

21 Ala.App. 35

WILSON et al. v. STATE.

5 Div. 566

Court of Appeals of Alabama

June 30, 1925

Appeal from Circuit Court, Randolph County; N.D. Denson, Judge.

Dee Wilson and Horace Jenkins were convicted of murder in the second degree, and they appeal. Affirmed.

A.L Crumpton, of Ashland, for appellants.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SAMFORD J.

Defendants insist that the trial court erred in refusing to permit their counsel to make a preliminary statement to the jury as to what they expected the evidence to show. This is not the practice in this state. The plea of not guilty covers the entire defense, and the evidence is introduced and developed under the guidance of the rulings of the court. There was no error in this action of the court.

Refused charge 5 was properly refused for the reason that the indictment for murder in the first degree embraces all the lower degrees of homicide. Stoball v. State, 116 Ala. 454, 23 So. 162; 8 Mitch.Dig. 381, §§ 260(4).

Refused charge 6 was fully covered in the oral charge of the court as to each and all of the defendants. Moreover, there were three defendants, and this charge only refers to one, but as to which one does not appear. This in itself would render the charge misleading.

Refused charge 8 is amply covered in the oral charge of the court.

Refused charge 11 singles out a part of the evidence, and for that reason is invasive of the province of the jury, and refused charge 14 omits the elements of danger and retreat. Refused charge 16 is covered by given charge 15 and by the oral charge of the court.

Refused charge 17 does not state a correct rule. The presumption of innocence remains only so long as the jury are not convinced beyond a reasonable doubt of his guilt. When that time arrives the presumption ends. 4 Mitch.Dig. 366, § 526(3). Refused charge 20 is bad. Tuggle v. State, 19 Ala.App. 539, 98 So. 700. Charge 22 is abstract. Refused charges 27 and 28 are both invasive of the province of the jury.

Impeaching circumstances as to testimony of witness may be taken into consideration in determining the weight which they will give to such evidence, but such consideration is for the jury. 4 Mitch.Dig. 348, § 514(4).

Refused charge 29 is a bad charge. Bluitt v State, 161 Ala. 14, 49 So. 854. Refused charges 5E and 6F are covered in the oral charge.

The defendants have had a...