The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1904-06-25
THOMAS v. STATE.

A"oiStheHt TOT Murder.-Appeal from
the City Court of Talladega.
/. New trial in criminal case; rul-
Ing on motion not reviewed on appeal
The ruling OF a trial court on a mo-
ton for new trial in a criminal cause
is not revisable on appeal.
z. Evidence; when general objection
Is properly overrulsd.-A general OBJ
lection to a question asked a witness
which is not made until after the ques-
ton has been answered, is properly
overruled
8. Same.-On a trial under\ an in
dictment for murder, a witness, though
not physician. Is competent to testify
that he was present when the deceased
died under an operation performed on
MIN, by reason Of a wound inflicted by
the defendant.
4. Indictment for murder; charge of
court as to neutrality-suspicious. a trial
under an indictment for murder where
after the court in its oral charge to the
jury has instructed them as to what
constitutes murder In the first and Sec
ond degree, the following further in
struction by the court is free from err
ror: Manslaughter In the first de-
gree is also embraced in this indict-
ment. Manslaughter in the first de-
gree Is the unlawful killing of a hui
the premedltated result Of passion
heated blood caused by a sudden SUM-
cient provocation. Now. II the defend
ant unlawfully, but without malice.
killed John Leonard by shooting him
with pistol and such killing was the
result Of passion heated blood sud
denly aroused without sufficient provo
cation solely, then that would be man
slaughter in the first degree"
4. Same; when not erroneous for
court to fail to instruct as to man.
slaughter In the second degree.-On a
trial under an indictment for murder.
where there is an entire absence of evil
dence tending to show that the crime
committed was manslaughter in the
second degree, and all the evidence.
without conflict or dispute, shows that
the killing of the defendant was inten-
ticnal. 1t is no objection to the general
oral charge of the court to the jury
that 1t falls to instruct them as to man
slaughter In the second degree. and It
is not error for the court, in such case
In Its general oral charge, to instruct
the jury that IL the defendant 10 guilty
at all under the evidence in the case
he is guilty OF either murder in the
first degree, murder in the second de-
gre or manslaughter in the first de-
gree.
b. Homicide; improper treatment of
dangerous wound affords no protection
to defendant.-Where a wound upon a
deceased is in itself dangerous to life.
mere erroneous treatment of 1t, or of
the deceased himself suffering from
1t. will AFFORD no protection or defense
to defendant against a charge of I'M
lawful homicide
s. Argumentative and confused
charges are properly refused.
I. Indictment for murder; charges
as to manslaughter and murder.-On a
trial under an indictment for murder
where there was evidence introduced
from which the jury might have found
the defendant guilty of murder, charges
are erroneous and properly refused
which instruct the jury that II they
believe the evidence beyond a reason
able doubt they will find the defendant
guilty of manslaughter, or that they
will acquit the defendant of murder
In the first degree and murder in the
second degree.
s. Trial and its Incidents; charge as
to defendant not testifying as a wit
ness,-Under the statute, no adverse in
ference or presumption can be drawn
from the failure of the defendant in A.
case to testify as a witness in
his own behalf, (Code, Sec. $3.50; and.
therefore, in trial of a criminal case.
n charge requested by the defendant
should De given. which instructs the
Jury that No inference or conclusion
should be drawn by the jury from the
ract that the defendant was not sworn
and put on the stand as q witness in
his own behalf nor should this fact
nave any weight with the jury in reach
ing verdict"
Reversed and remanded.
Opinion by Dowdell, ].