The matter of granting a continuance due to newspaper publicity is not necessarily a ground for continuance and addresses itself to the sound discretion of the trial court. Littlefield v. State, 36 Ala. App. 507, 63 So.2d 565; Collins v. State, 234 Ala. 197, 174 So. 296. The fact that a confession was made by a defendant while under arrest, with reference to the homicide with which he is charged without threats or inducements on the part of the officers and substantially as related and affirmed by the prisoner as correct, is voluntary and admissible. Corbin v. State, 19 Ala. App. 439, 98 So. 132; Dennison v. State, 259 Ala. 424, 66 So.2d 552; Odom v. State, 253 Ala. 571, 46 So.2d 1; Thomas v. State, 257 Ala. 124, 57 So.2d 625; Gilmer v. State, 181 Ala. 23, 61 So. 377. Where witness is examined in rebuttal, discretion of the trial court governs examination and same is not reversible in the appellate court. Braham v. State, 143 Ala. 28, 38 So. 919; Caldwell v. State, 203 Ala. 412, 84 So. 272. Where substantially the same charges are given in the requested charges, or the court's oral charge, there is no error in the refusal of the court to give charges of like effect or in varying phraseology. Nelson v. State, 35 Ala. App. 1, 46 So.2d 231.
Scott v. State, 211 Ala. 270, 100 So. 211; Hussey v. State, 87 Ala. 121, 6 So. 420; Walker v. State, 91 Ala. 76, 9 So. 87; Patton v. State, 197 Ala. 180, 72 So. 401; Ford v. State, 71 Ala. 385; Gordon v. State, 129 Ala. 113, 30 So. 30; Morgan v. State, 88 Ala. 223, 6 So. 761. The remarks in argument of prosecuting counsel to the jury, in reference to the widow of deceased, were not improper. Doss v. State, 224 Ala. 90, 139 So. 290. What appellant said just after he was apprehended and questioned by officers was admissible in contradiction of appellant's testimony that the shooting was accidental, as a voluntary confession or as a statement against interest. Corbin v. State, 19 Ala. App. 439, 98 So. 132; Ex parte Corbin, 210 Ala. 369, 98 So. 134. There was no denial of appellant's constitutional right to be represented by counsel. The trial court did not abuse its discretion to preserve decorum.
A confession, to be admissible, must be freely and voluntarily made, and a predicate must be laid from which it appears that it was voluntary. Corbin v. State, 19 Ala. App. 439, 98 So. 132; Id., 210 Ala. 369, 98 So. 134; Gilbert v. State, 20 Ala. App. 28, 100 So. 566. The court may not charge upon the effect of the evidence unless required to do so by one of the parties, nor upon the degree of murder. Code 1923, § 9507; De Bardelaben v. State, 205 Ala. 658, 88 So. 827. A charge which does not predicate a reasonable doubt on the evidence is erroneous. Haswell v. State, 17 Ala. App. 519, 86 So. 170. The court should charge the jury only upon the law and the evidence and not upon the argument of council.
THOMAS, J. Petition of Riley Corbin for certiorari to the Court of Appeals, to review and revise the judgment and decision of said court in the case of Riley Corbin v. State, 98 So. 132. Writ denied.
" To the same effect are Montgomery v. State, 160 Ala. 7, 49 So. 902 (1909); Moss v. State, 190 Ala. 14, 67 So. 431 (1914); Corbin v. State, 19 Ala. App. 439, 98 So. 132, 134, cert. denied, 210 Ala. 369, 98 So. 134 (1923); Kelley v. State, 32 Ala. App. 408, 26 So.2d 633, 637 (1946); Davis v. State, 36 Ala. App. 573, 62 So.2d 224, cert. denied, 258 Ala. 281, 62 So.2d 229 (1953). The cases cited uphold the action of the trial court in refusing defendant's requested written charges that would permit an acquittal of defendant upon an unqualified hypothesis of innocence, that is, an unreasonable one.
That defendant was only seventeen years of age was a matter to be considered by the court in determining whether his confession was voluntary and also to be considered by the jury in deciding how much weight or credibility should be given his inculpatory statement, but the youth of an accused does not in and of itself require a rejection of a confession otherwise admissible. Elrod v. State, 281 Ala. 331, 202 So.2d 539; Martin v. State, 90 Ala. 602, 8 So. 858; Hoober v. State, 81 Ala. 51, 1 So. 574; Corbin v. State, 19 Ala. App. 439, 98 So. 132, cert. denied 210 Ala. 369, 98 So. 134. The court refused defendant's written charge as follows:
Shack v. State, 236 Ala. 667, 184 So. 688. It is not predicated on the evidence. Corbin v. State, 19 Ala. App. 439, 98 So. 132; Id., 210 Ala. 369, 98 So. 134. It is otherwise faulty. Storey v. State, supra. There is no element of second degree manslaughter in this case, and charge 20 was properly refused.
Wilson v. State, 84 Ala. 426, 4 So. 383; Poarch v. State, 19 Ala. App. 161, 95 So. 781; Braxton v. State, 17 Ala. App. 169, 82 So. 657. It is error to permit the state to prove an alleged confession before proper predicate has been shown. Motes v. State, 20 Ala. App. 196, 101 So. 286; Carr v. State, 17 Ala. App. 541, 85 So. 852; Corbin v. State, 19 Ala. App. 441, 98 So. 132; Whitehead v. State, 16 Ala. App. 427, 78 So. 467. Charlie C. McCall, Atty. Gen., for the State.
The testimony of English was admissible as a part of the res gestæ. Page v. State, 17 Ala. App. 70, 81 So. 848; Corbin v. State, 19 Ala. App. 439, 98 So. 132. Evidence tending to show animus on the part of defendant was admissible. Thomas v. State, 18 Ala. App. 268, 90 So. 878; Vann v. State, 207 Ala. 152, 92 So. 182; Hall v. State, 208 Ala. 199, 94 So. 59.