Opinion
8 Div. 304.
June 16, 1931. Rehearing Denied June 30, 1931.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Novella, alias Noveler, Winston was convicted of assault with intent to murder, and she appeals.
Affirmed.
Certiorari denied by Supreme Court in Winston v. State, 223 Ala. 515, 137 So. 313.
O. Kyle, of Decatur, for appellant.
It is the right of the defendant to have given to the jury instructions based on the hypothesis which his evidence tended to establish, thus submitting its credibility to them. Munkers v. State, 87 Ala. 98, 6 So. 357. Such charges are not objectional, though based on a partial view of the evidence, since the opposite party may request charges founded on a contrary hypothesis, if there is evidence tending to establish it. Griel v. Marks, 51 Ala. 566; Alexander v. Alexander, 71 Ala. 295; Hammil v. State, 90 Ala. 581, 8 So. 380; Walker v. State, 220 Ala. 544, 126 So. 848, 852. The indictment in the case is no evidence that the defendant is guilty of the offense charged against her, and charge 6, so instructing, should have been given. Prater v. State, 193 Ala. 41, 69 So. 539. A defendant, voluntarily taking the stand, may be compelled to testify to all relevant existing facts, but cannot be compelled to do some positive affirmative act inculpating himself. It was therefore error for the court, over defendant's objection, to require her to write words upon a paper. Clarke v. State, 78 Ala. 481, 56 Am. Rep. 45; Rains v. State, 88 Ala. 99, 7 So. 315; Shields v. State, 104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17; Lamson v. Boyden, 160 Ill. 613, 43 N.E. 781; McGinnis v. State, 24 Ind. 500; Blum v. State, 94 Md. 375, 51 A. 26, 56 L.R.A. 322; Wilson v. State, 41 Tex. Cr. R. 115, 51 S.W. 916; People v. Mead, 50 Mich. 228, 15 N.W. 95.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
It is not error to refuse a charge, though correct, where the same rule of law is substantially and fairly given to the jury in the oral charge or other given charges. Code 1923, § 9509; Walker v. State, 220 Ala. 544, 126 So. 848. The refusal of charge 6 is not cause for a reversal. Morris v. State, 146 Ala. 66, 41 So. 274; Collins v. State, 21 Ala. App. 152, 106 So. 341; Pelham v. State, ante, p. 330, 134 So. 888. When the accused takes the stand as a witness, he is subject to cross-examination as any other witness and waives his constitutional rights. There was no error in requiring defendant to write in order to reflect upon her claim that certain letters introduced by her were written by the prosecuting witness. At any rate, her writing was not introduced in evidence, and there was no error prejudicing her rights. Bettis v. State, 160 Ala. 3, 49 So. 781; Caughlan v. State, 22 Ala. App. 220, 114 So. 280.
Appellant was convicted of the offense of assault with intent to murder. Her punishment was fixed at imprisonment in the penitentiary for an indeterminate term of not less than two nor more than three years.
The state's evidence tended to show that she made a murderous assault upon her paramour, by shooting him with a pistol, for no apparent cause whatever. Her own, also of a rather fanciful nature, was to an opposite effect.
The whole occurrence revolved about an illicit sexual contract, or contact, between negroes, with the principal witnesses likewise of that race.
None but a jury was competent, in our opinion, to say what the facts were, from the conflicting testimony adduced.
The trial court's oral charge, read in connection with the several written charges given to the jury at appellant's request, covered and included every correct principle of applicable law contained in any one of the written requested charges which were refused to appellant. We find no error in the refusal of any of these charges. Code 1923, § 9509. We are not to be understood as saying that the court would have been under a duty to give any one of said charges, otherwise. Notably, without commenting on each one of said charges, we observe that written, requested, and refused charge 6 has been held to be but a mere argument, and, of course, always properly refused. Morris v. State, 146 Ala. 66, 41 So. 274.
We are unable to see that requiring appellant, upon cross-examination, after she had taken the stand and testified in her own behalf, to write certain words upon a piece of paper, which writing was not introduced in evidence, worked any injury to her rights. So, without going into the question of whether or not it was error to require her to write the words, we hold that here, in any event, there was no prejudicial error in requiring her to do so.
Above, we have discussed all those matters treated in the brief filed here on behalf of appellant.
In addition, we have carefully read and considered the entire record, including the bill of exceptions.
There appears, nowhere, prejudicial error, and the judgment of conviction is affirmed.
The opinion hereinabove is substituted for the original opinion, which is hereby withdrawn.
Application for rehearing is overruled.