From Casetext: Smarter Legal Research

McClanahan v. State

Court of Appeals of Alabama
Apr 7, 1925
20 Ala. App. 553 (Ala. Crim. App. 1925)

Opinion

6 Div. 522.

February 17, 1925. Rehearing Denied April 7, 1925.

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Fred McClanahan was convicted of assault with intent to murder, and he appeals. Affirmed.

Charge 1, refused to defendant, is as follows:

"(1) In all cases of homicide or an assault with an intent to kill, the law requires as an element of guilt an intent to kill; and if in this case you find that the defendant did not, when he shot Ed Holmes, intend to kill him, then you should acquit him of the offense with which he is charged, and inquire only as to whether he is guilty of an aggravated assault."

Mathews Mathews, of Bessemer, for appellant.

It is the intent unlawfully and maliciously to kill that constitutes the crime of assault with intent to murder. Washington v. State, 53 Ala. 33; McCormack v. State, 102 Ala. 161, 15 So. 438. Defendant is a competent witness in his own behalf and his testimony is to be weighed as that of other witnesses. Code 1923, § 5632. The burden of proof is always upon the prosecutor. Roberson v. State, 183 Ala. 43, 62 So. 842.

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

There is no error in the record.


The specific intent to kill is not essential in all cases of homicide, notably in a charge of manslaughter in the second degree. Including as it does all grades of homicide refused charge 1 was properly refused.

Refused charge 3 is as follows:

"The jury are instructed that the defendant is a competent witness in his own behalf, and they should not disregard his evidence, because he is the defendant and stands charged with a crime, but they should thoroughly and impartially consider and weigh his testimony by the same rule as that of other witnesses in this case."

The Attorney General in his brief insists that this charge is covered by the court's oral charge, but neither in the oral charge nor in the given charges do we find this charge even substantially covered. We are, however, of the opinion that the charge is misleading. To the mind of the average juror, it would seem to impart as matter of law, that the jury were bound to give to the testimony equal weight as to that of any other witness. This is not a correct rule. While the jury may not capriciously disregard the testimony of the defendant when he elects to testify, the weight and influence any proof shall have on their deliberations is exclusively for them. As was said by Stone, C.J.:

"The law has neither declared, nor can it declare, any standard for weighing such testimony." McKee v. State, 82 Ala. 32, 2 So. 451; Ex parte Warrick, 73 Ala. 57.

Refused charge 7 is covered in given charge 10 and in the court's oral charge. The correct rule of law with reference to the presumption of innocence and as to how long it was to continue was correctly given to the jury by the court in his oral charge. This presumption of innocence continues only to that point where the jury arrive at the conclusion from the evidence beyond a reasonable doubt that the defendant is guilty.

Refused charges 9 and 10 were both fully covered by given charges, and by the oral charge.

We find no error in the record, and the judgment is affirmed.

Affirmed.


Summaries of

McClanahan v. State

Court of Appeals of Alabama
Apr 7, 1925
20 Ala. App. 553 (Ala. Crim. App. 1925)
Case details for

McClanahan v. State

Case Details

Full title:McCLANAHAN v. STATE

Court:Court of Appeals of Alabama

Date published: Apr 7, 1925

Citations

20 Ala. App. 553 (Ala. Crim. App. 1925)
103 So. 717

Citing Cases

Jones v. State

The specific intent to take life is not essential in a conviction for manslaughter in the second degree.…