The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1908-08-16
Head Notes of the Decisions
of the Alabama Supreme Court

peared that defendant killed deceased
under the belief that it was necessary
In order to protect another and that
such other was free from fault in
bringing on the difficulty, is proper
ly refused for failing to hypothesize
defendants Freedom from fault in
bringing on the difficulty.
10. Samoan instruction asserting
that IL B. approached deceased in a
peaceful manner with no intention of
bringing on the difficulty and deceased
struck him with weapon and the ap-
pearanee was such as to lead a reason
able man to believe that he intended to
continue to use the weapon against B..
or defendant. and B. could not retreat
safely, and defendant killed deceased
to protect B., the defendant should be
acquitted. is defective in that although
B. may have approached deceased with
no intention OF bringing on the diff
ficulty. and yet afterwards had brought
1t on. and In not hypoth esizing what
defendant may have done to bring 1t
on.
IL. Trial; Instructions: undue promi-
nence to portions of evidence-Charges
which single out one item of evidence
and charge as to it's effect or which
give undue prominence to certain por-
lions OF the/evidence to the exclusion
of others. are properly refused.
is. Same; invasive of province OF
jury-An instruction asserting that
under an indictment charging murder
in the second degree by cutting with
knife, the defendant could not be
found guilty of any greater offense
than assault and battery with a weapon,
was properly refused as invasive of the
province of the jury
16. Same; submitting questions of
law to the jury-Charges asserting that
II BIS situation was such that he
would have been justified in taking
decedent's life, the defendant. although
not connected with the difficulty be
tween deceased and B., would be justi-
fid in using the same degree of force
in defending B. that B. would have
been justified in using and would have
been justified in taking deceased's life
IL B. would have been so justified sub
mitted to the Jury a question of law
as to what facts or circumstances
would have justified B. in taking de-
ceased's life and were properly refused.
II. Homicide: Instructions; degree;
offenses charged--A charge asserting
that II there is a reasonable doubt as
to the proof of any material allegation
In the indictment, the defendant must
be acquitted is erroneous, since under
such indictment he was liable to con-
viction for any degree of homicide or
other crimes charged therein.
IS. Trial; argumentative instruc1
tions-A charge asserting that IL two
conclusions can be drawn from the
evidence. or two constructions given
to the facts proven, one favoring de-
fendant's innocence and the other his
guilt, the former should be adopted.
is a mere argument and properly re-
fused: as is a charge asserting that 1t
is far better for the guilty to go un-
whipped of justice than that the In
nocent should be punished; as is a
charge asserting that to convict the
defendant the evidence should be as
strong as the positive testimony of
one credible witness who proves beyond
all reasonable doubt the guilt of de-
PENDANT.
10. Same: instruction bias of wit
ness-A charge Is proper that asserts
that II any OF the states witnesses ex-
hibited bias against defendant or anger.
and satisfied the jury that they had
not testified truly and were not worthy