The court in its general charge, and without being requested in writing to do so, charged the jury as follows:
"Therefore, gentlemen of the jury, it would be your duty to find in favor of the state, under the plea of not guilty, if you believe the evidence beyond a reasonable doubt."
The defendant when called interposed: First, the general plea of not guilty; and, second, not guilty by reason of insanity. Although there might be no conflict in the testimony upon the plea of not guilty, the court was not authorized to charge upon the effect of the evidence without having been requested to do so by one of the parties. Code 1907, § 5362.
The above charge was the general affirmative charge for the state as to the first plea and, not having been requested in writing by the state, is reversible error. Foster v. State,47 Ala. 643; Collins v. State, 138 Ala. 57, 34 So. 993; Gafford v. State, 125 Ala. 9, 28 So. 406.
As the judgment in this case must be reversed, it is not necessary to pass upon all of the objections and exceptions to testimony raised on the former trial; but, for the guidance of the lower court in another trial, the following rules should be followed in the admission of testimony:
While the insanity of a person is in issue, great latitude is allowed in admitting evidence having any tendency to throw light upon the mental condition of the person at the time in question. 14 Rawle C. L. par. 67, p. 616. And again, it is said in 8 Rawle C. L. p. 189, that, when insanity is relied upon as a defense to crime, great latitude is allowed in admitting evidence having any tendency to throw light upon the mental condition of the defendant at the time of the commission of the crime; evidence of anything and everything which in some substantial way would have a tendency to show that his nervous organization was affected at the time of the commission of the act is admissible.
This being the rule with reference to the admission of testimony, the court should permit evidence of the condition of defendant's family, the fact that his wife had deserted him and left several small children, some of whom were sick; that the defendant's wife had gone off with the deceased, with whom he had been told she had been too familiar, and testimony in line with the above; but the rule should also be kept in view that testimony, to be admissible, must at least tend to prove or disprove some of the issues involved. In view of the evidence tending to show the insanity of the defendant at the time of the fatal shooting, we think that evidence of the condition of his family, the desertion by his wife, and the association of his wife with her paramour, was admissible, as bearing on the question of sanity.
The other rulings of the court on the testimony were without error; but, for the errors above pointed out, the judgment of the lower court is reversed, and the cause is remanded.
Reversed and remanded.