The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1908-08-16
BURKETT VS.. THE STATE.

BURKETT VS.. THE STATE.
Murder-(Decided February 8, 1908
As South 6S2.)
/. Criminal law; conduct OF trial,
separate trial--The court may. IN It's
discretion, try @ae of two or drcre per-
sons separately, although Jointly IN
dicted. In spite OF an objection that
they should be tried together.
2. Evidence; opinion evidence-In a
prosecution for murder, a physician
may testify as to whether the wounds
received caused the death OF decedent.
g. Same; credibility of defendants
testImony--In all prosecutions the jury
may consider the fact that the defen-
dant Is interested in the result of the
trial as bearing on the credibiiity ana
weight to be given his testimony.
T. Homicide: malice; burden OF
proof-Jnless the evidence proving the
killing shows an absence OF malice the
burden is cast on defendant of repell-
ing the presumption of malice from
the use of a deadly weapon.
s. Same; instructions; defense OF an
other--A charge asserting that in order
TO acquit defendant on the ground that
the defendants shot in defense OF an
other. such defendant must have been
reasonably free from fault In bringing
on the difficulty, there must have
existed really or so apparently as to
lead a reasonable man to believe that
there existed present necessity to
strike in order to save such other or
themselves from death or great bodily
harm. and there must have been no
other reasonable mode of escape for
such other person, Is a correct state
ment OF the law. except that IL is too
favorable to defendant in using the
word reasonably. as qualifying free
dom from fault In bringing on the diff
ficulty; but of such error defendant
cannot complain.
charge asserting that IL 1t appears. be-
yond 3 reasonable doubt that defen-
dant intended. in the event of Difficult
ty between his friend and deceased, to
strike the fatal blow, and did SO in
pursuance OF such intent. he could not
be acquitted. correctly states the law.
4. Trial instructions; two theories
A charge asserting that II, there are
two theories conflicting. one showing
the guilt of accused and the other his
innocence. the jury should adopt the
one showing his Innocence, is invasive
OF the province OF the jury and proper
" refused.
8. Same: good character-A charge
asserting that II defendant had proven
q good character for himself, that
alone, considered with tho other evil
aEAhtGt may NC SAAAAC4CAb ~ N0AHG q
reasonable doubt Of defendants guilt,
and justify his acquittaI, when but for
his good character a reasonable doubt
would not arise. is elliptfcal and its
refusal proper.
g. Same; instructions covered by in
structfons giyen-It Is not error to re-
fuse written instructions substantially
covered by instructions given.
10. Same; instructions directing ver-
dict--Where the evidence is conflicting.
Il Is not error to refuse instructions
directing the acquitta1 OF defendant.
II. Homicide; instructions; defense
Of another-A charge asserting that II
IL appears from the evidence that de-
PENDANT killed deceased under the be-
lief that It was necessary to save an
others life and that defendant and
such other were free from fault in
bringing on the difficulty. the desen-
dant should be acquitted. Is erroneous
for pretermitting the duty to retreat.
IL. Samoa charge asserting that
defendant should be acquitted IL 1t ap-