In the application for rehearing it is stated: "The court specifically stated in its opinion that the court's oral charge covered in substance all of the refused charges, or else, the refused charges were covered fully by the written charges."
This court made no such statement. What the court did say is as follows: "The court properly submitted the case to the jury. In this connection the court delivered a most excellent oral charge, full, explicit and thoroughly fair to the accused. *Page 16 In addition to said oral charge, the court gave at the request of defendant about twenty special written charges. In the oral charge, and given charges, every pertinent proposition of law raised by the charges refused to defendant, which contained correct statements of the law, were fairly and substantially covered. This being true, the court was under no duty to give said charges."
In connection with the foregoing, counsel for appellant asserts: "How the Court of Appeals can claim this charge (Refused charge B) was covered by the oral charge, or by the given charges, is beyond me." And likewise asserts: "I have read this oral charge six times carefully, considerately, and scrupulously, — if the court will point out one single line, one single letter, one single instance, in that oral charge where this written charge was covered, or remotely covered, or anywhere near covered, I will immediately withdraw this contention and throw up my hands on this brief. It simply is not there and no language that the court might use can make it be there. It is nowhere covered in the given charges directly or indirectly."
If appellant's counsel had been as assiduous in reading, and rereading the opinion of this court, as he claims to have read and reread the oral charge of the court, etc., there would have appeared no necessity of misquoting the excerpt of the opinion as clearly appears from the foregoing.
As above set out this court advisedly used the expression, every pertinent proposition of law, which contained correct statements, etc. Said charge "B" reads as follows: "I charge you, the fact that the defendant did not testify cannot be considered against him." Section 5632 of the Code 1923, provides: "On the trial of all indictments, complaints, or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness; and his failure to make such request shall not create any presumption against him, nor be the subject of comment by counsel."
The statutory prohibition of a defendant's failure to testify in the trial of a criminal charge against him is that such failure shall not be the subject of comment by counsel. There is no contention that defendant's failure to testify in this case was in any manner made the subject of comment by counsel, or was referred to in any manner. The trial court in this case refused the charge very probably upon the theory, here entertained, that the refusal thereof was without injury. There is direct authority for holding, as we have held on this question. Rule 45 (Sup.Ct. Rule) provides: That no judgment may be reversed or set aside, no new trial granted by any court in this State in any case, on the grounds of misdirection of the jury, the giving or refusal of special charges, etc. unless in the opinion of the court, — it should appear that the error complained of has probably injuriously affected substantial rights of parties. Such is the opinion of this court in the case at bar, where the evidence, without material conflict, discloses that this appellant committed the assault complained of, and, as stated in the opinion, it being insisted that the murderous assault was inflicted upon a defenseless old man, and was wholly unprovoked, and without any semblance of justification in the law.
For like reasons defendant's charge number 35 was also refused without error.
The argument in support of the insistence is that "the court erred in the oral charge by instructing the jury 'to take' certain testimony." What the court said in this connection is as follows: "I don't know of any rule I care to give you here about the evidence in the case beyond the one that will arise in all cases, and that is the interest of the parties and how far it affects their testimony. Whenever an interest upon the part of a witness appears in the evidence in the case, you would be authorized to take that interest, if it is such an interest as in your judgment would stimulate the witness to color the facts to secure a conviction, or on the other hand to secure an acquittal. You don't chunck a witness's testimony out to one side and not consider it, but you take it together with his interest and all the other facts and circumstances in the case, because there may be other witnesses who have no interest, or other facts and circumstances which corroborate him which would justify you, or compel you to believe him, notwithstanding he may have an interest, and that applies to all."
In no instance did the court charge the jury that it must or shall weigh any evidence in a certain manner. It is permissible for the trial court to state generally in an oral charge, to take the testimony and consider it, and "you may so consider" it *Page 17 in the light of the interest of the witness who testifies.
The authorities cited by counsel for appellant to support his insistence, that it is error for the court to instruct the jury "to take" the testimony, etc., do not in any manner sustain the proposition under discussion. Appellant first cites Barber v. State, 22 Ala. App. 288, 115 So. 73. We find no such case. We do find the case of Barlow v. State on the designated pages of the books, supra, and in that case, this court simply stated: "The court may never tell the jury how they shall consider testimony." And in the other case cited by appellant's counsel, viz.: Hunter v. State, 22 Ala. App. 432, 433, 116 So. 503, 504, this court stated the correct rule to be: "It is proper for the court to instruct the jury to consider such testimony, together with the other evidence in the case, and in so doing that they may weigh such evidence in the light of any interest a witness may have been shown to have in the result of the trial. The mandatory instruction that the jury must or shall so weigh such evidence is invasive of their prerogative, for the credence to be given to such evidence should be left to the jury unembarrassed or uninfluenced by direct mandatory instructions from the court."
Application for rehearing overruled.