Opinion
4 Div. 296.
April 19, 1927.
Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.
Herbert Salter was convicted of murder in the second degree, and he appeals. Reversed and remanded.
The following requested charges were refused to defendant:
"(1) The court charges the jury that comprehended within the terms of the indictment is the offense of assault and battery, and the court further charges the jury that, if from all the evidence in the case you have a reasonable doubt of defendant's guilt of all offenses embraced in said indictment, except that of assault and battery, and if from the evidence you are satisfied beyond a reasonable doubt of defendant's guilt of assault and battery, then you should convict for assault and battery.
"(2) The court charges the jury that embraced within the terms of the indictment is the offense of assault and battery, and the court further charges the jury that, if from all the evidence you have a reasonable doubt of defendant's guilt of all other offenses save that of assault and battery, then you cannot convict defendant of any offense unless it be for assault and battery, and you should not convict him of assault and battery unless the evidence in the case convinces you beyond a reasonable doubt of this offense."
"(10) The law does not presume that the defendant is guilty in this case, but, on the contrary, presumes as a matter of law and fact that the defendant is innocent, and that presumption of innocence goes with him in this trial until removed by proof of facts actually proving that he is guilty beyond a reasonable doubt.
"(11) The court charges the jury that, if you believe the evidence, you will find the defendant not guilty."
"(14) The court charges the jury if Hub Salter approached the deceased in an orderly and friendly manner, and with no idea or thought of saying or doing anything that would cause or bring on a difficulty, then the fact that defendant approached deceased in the manner shown by the testimony would not tend to show the defendant brought on or provoked the difficulty."
"(17) The court charges the jury if you from the testimony believe that Hub Salter approached the deceased in an orderly and friendly manner, and with no thought of saying or doing anything that would cause or bring on a difficulty, and nothing was said or done that would cause or provoke a difficulty, then, as matter of law, defendant did not provoke or bring on the difficulty.
"(18) The court charges the jury that the indictment in this case is not any evidence in the case, and the fact that defendant has been indicted is not to be considered by you as a circumstance against him, but said indictment is merely the method of placing defendant on his trial, but the presumption of innocence attends the defendant throughout this trial and remains with him and authorizes an acquittal, if the entire testimony fails to overcome said presumption, by proof of defendant's guilt beyond a reasonable doubt."
"(20) The court charges the jury that there is no evidence in this case that shows a conspiracy or agreement between the defendant and others to commit the offense charged."
Frank B. Bricken, of Luverne, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
No briefs reached the Reporter.
The rulings of the court on the admission of evidence were without prejudicial error.
Refused charges 1 and 2 are abstract and not properly given in a case of this kind. True, assault and battery, being a lesser offense, is comprehended in an indictment charging murder, but if the defendant is guilty of assault and battery and death ensues as a result thereof, within a year and a day, the crime cannot be less than manslaughter.
Refused charge 6 was covered by the other given charges. Refused charge 10 is argumentative and tends to mislead. Refused charges 11, 14, 17, and 20 are invasive of the province of the jury.
When a person is placed on trial charged with a criminal offense, he is presumed to be innocent until the presumption is overcome by the evidence beyond a reasonable doubt. This presumption must be regarded by the jury as evidentiary and attends the defendant until the evidence in the case overcomes the presumption by proof of defendant's guilt beyond a reasonable doubt. The defendant is entitled to have the jury so instructed. Diamond v. State, 15 Ala. App. 33, 72 So. 558. Certiorari denied Ex parte State, 198 Ala. 702, 73 So. 1002. Refused charge 18 should have been given, and its refusal was error.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.