The Montgomery advertiser., 1903-05-05
V. THE STATE.


 indictment for Murder.-Appeal from the
 Circuit Court of Lawrence.
 1. Homicide; proper for court to in struct jury as to murder in the first and second degree.-On trial under an in- dictment for murder. it Is proper for the court in its general charge to the jury, to instruct the jury upon the law of mur- der in the first and second degree. and in so doing the court commits no error.
 2. Trial and its incidents; explanation by court of charge.-Where. in the trial Of criminal case. the court at the re- quest of the defendant instructs the jury that if they believe from the evidence ''that the defendants guilt had not been proven to a moral certainty" then they must acquit the defendant. it is not error Tor the court to further instruct the jury by way of explanation, that such charge meant that before the defendant could be convicted his guilt must be first es- tablished beyond reasonable doubt" such charge not being in violation of the statute requiring the court to give or re- fuse requested charges in the terms in which they are written Code. Sec. 332S )
 3. Charges as to reasonable doubt.-On the trial of criminal case, charge which fnstructs the jury that if you be- ifeve from the evidence beyond a reason able doubt that the defendant Is guilty though you also believe 1t possible that he is not guilty. you must convict him." Is free from error and Is properly given at the request of the State.
 1. Same.-On the trial of a criminal case, charge which instructs the jury that doubt which will justify an acQuit- tai must be actual and substantial, mot a mere possible doubt. because every thing relating to human affairs and de- pending on moral evidence is open to some possible or imaginary doubt Is free from error, and Is properly given at the request of the State.
 5. Same.--On the trIel of a criminal case. charge which instructs the jury .etA Arfk. oil n,tt1 you have fixed conviction of the truth of the charge, you are satisfied beyond T reasonable doubt, then 1t is your duty to convict the defendant" asserts a correct at the request of the State is free from error.
 6. Misleading and argumentative charges.-Charges which are misleading and argumentative are properly refused.
 z. Charge of court to jury: as to weight to be given to testimony of impeached witness.-When the character of a wit ness is assailed or he is otherwise i'm peached it is wholly within the province of the jury to say what degree of weight or credibility should be given to the tes- timony of such witness: and. therefore. in the trial of a criminal case, where there was evidence tending to disregard the testimony of the principal witness for the State. charge Is erroneous and properly refused which instructs the jury that If the guilt of the defendant de- bends upon the testimony of a particular witness. and the evidence further shows that such witness Is unworthy of belief, then 1t is the duty of the judge to &C., quit the defendant"
 s. When general affirmative charge properly refused in criminal case.-In the trial of criminal case. where there was evidence introduced on the part of the State, which If believed by the jury was sufficient to authorize a conviction, the general af1rmative charge requested by the defendant Is properly refused. g. Homicide; argument of counsel as to lynching.-On a trial under an indictment | for murder. where the evidence tended to show that the deceased was hanged by a mob and that the defendant participated | in the lynching. the solicitor for the State does not transcend the limits of legiti- mate argument when, in his argument to the jury he makes the following state | ment: Mob law must be stopped. If a | crowd of negroes take a negro out and | hang him and if the jury acquit the de- fendant where they have evidence to con. | vict him. as they have in this case, ther the first thing you know. they will be taking white man out and hanging | him.
 l 10. Charge of court as to testimony oi | witness.-On the trial of a criminal case | where there was testimony introduced tending to discredit the testimony of one | of the principal witnesses for the State, a l charge Is free from error and should be given at the request of the defendant which instructs the jury that If the guilt of the defendant depends upon the testi- mony of the witness Perkins. and the | jury believe from the evidence that said witness Perkins was willfully and mali ciously false. as to any material part of his said testimony, then the jury may | disregard all of the testimony of said wit ness Perkins and find the defendant not l guilty"
 Reversed and remanded.
 Opinion by Dowdell. J.