Opinion
4 Div. 389.
April 17, 1928. Rehearing Denied May 8, 1928.
Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.
Joseph W. Helms was convicted of murder in the second degree, and he appeals. Affirmed.
These charges were refused to defendant:
"The court charges the jury that the defendant cannot be convicted of murder in the first or second degree, or manslaughter in the first degree, unless he had the intention to kill Roy Grantham, or intended to do an act of violence from which ordinarily, in the usual course of events, death or great bodily harm might be a consequence."
"The court charges the jury that defendant cannot be convicted of murder in the first or second degree, nor of manslaughter in the first degree unless the defendant had the intention to kill Roy Grantham, or intended to do an act of violence from which ordinarily, in the usual course of events, death or great bodily harm might be the consequence."
Other refused charges related alone to first degree murder.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The indictment charged this appellant with the offense of murder in the first degree. By operation of law every lesser degree of homicide was included in the one charged.
The trial resulted in the conviction of the accused of murder in the second degree, and the punishment, fixed by the jury, was imprisonment in the penitentiary for a term of 15 years. Sentence was accordingly pronounced and judgment of conviction rendered, from which this appeal was taken.
No briefs have been submitted in this court by either the state or the appellant.
The few exceptions to the rulings of the court upon the admission of evidence need not be discussed, as they are without merit.
There is no aspect of this case which entitled the defendant to the affirmative charge as to either count of the indictment, or as to either degree of homicide therein charged. These questions were for the jury under the evidence adduced upon the trial.
The remaining charges refused to defendant, none of which is numbered, were properly refused under the authority of the following cases. Nutt v. State, 63 Ala. 180; McKee v. State, 82 Ala. 32, 2 So. 451; Lewis v. State, 96 Ala. 6, 11 So. 259, 38 Am. St. Rep. 75; Bailey v. State, 133 Ala. 155, 32 So. 57; Rector v. State, 11 Ala. App. 333, 347, 66 So. 857; Pat Clemmons v. State (8 Div. 689) ante, p. 418, 116 So. 910.
The record proper is without error. Judgment of conviction is affirmed.
Affirmed.