The defendant was indicted for and convicted of murder in the second degree, and sentenced to the penitentiary for 12 years.
There was no objection to the introduction of any of the testimony, and the defendant relies for error upon his exceptions to certain portions of the oral charge of the court, to the action of the court in refusing certain charges requested by him in writing, and upon the action of the court in overruling his motion for a new trial. Considering first the action of the court in refusing to grant the motion for a new trial, appellant's counsel earnestly insists that the defendant was deprived of a fair and impartial trial on account of a reprimand of a jury by the court for returning a verdict of not guilty in a prohibition case the day before defendant was put upon his trial. Counsel insist that the conduct of the court in so reprimanding a jury for returning a verdict of not guilty, being a part of the panel or venire, and in the presence or hearing of the entire panel, from which he had to select a jury to try the defendant, served in a manner to coerce or force the jury that did try him, under a fear of a probable like reprimand, not to give to his case that fair and impartial consideration guaranteed him under the law.
Should we arrive at the conclusion, under all the facts in this particular case, that probably the action of the trial court did enter into the consideration of the verdict reached in the case at bar, we hardly see how the defendant has brought himself in a position to invoke such aid. He doubtless was aware of all of these facts he would now summon to his aid when his case was called for trial, and if he asked for a continuance, or objected to going to trial on this or any other ground, the record fails to disclose it, and, failing to disclose it, we presume no such action was taken on his part, and he, having speculated, so to speak, on the action of the jury, and not having objected, cannot now be heard to complain. But, aside from this, this court and the Supreme Court have passed upon similar, if not stronger, facts claimed by the defendant as working to his detriment, and depriving him of a fair and impartial trial, and in each case has ruled against such contention on the part of the defendant. The reasoning in these cases is sound, and we would not, if we could, depart from them. Scott v. State, 3 Ala. App. 142, 57 So. 413; Shiver v. State, 13 Ala. App. 258, 69 So. 238; Landthrift v. State, 140 Ala. 114, 37 So. 287.
The defendant excepted to the following portion of the court's oral charge:
"But the law says you are to take his testimony in the light of the fact that he is the defendant, and interested in the result of your verdict, and consider his testimony in the light of the fact that he is interested in your verdict."
Appellant relies on the cases of Pugh v. State, 4 Ala. App. 144,58 So. 936, and Tucker v. State, 167 Ala. 1, 52 So. 464, as supporting his contention that in this part of the charge the court committed reversible error. It is true that it is invasive of the province of the jury for the court to charge that, in weighing the defendant's testimony, they must take into consideration the fact that he is the defendant and interested in the result of the case; but we are unwilling to give to the word "are" the same force as the word, "must," as it is used in that part of the court's oral charge excepted to. It may be that its use in the above was misleading; but it was open to him, and, if the defendant felt aggrieved at its use, he should have asked an explanatory charge along this line, but, used as it was, it cannot be said to be the equivalent of "must," and the charge on this account will not be held to be bad.
The defendant excepted to the following part of the court's oral charge:
"Gentlemen of the jury, the burden rests with the defendant, on his plea of self-defense, to offer you evidence that satisfies you."
It may be that this one part of the sentence in the court's oral charge, to which exception was taken, was subject to criticism, but taking it in connection with the other part of the oral charge makes it free from error and correctly states the law. In this connection the charge was as follows:
"Gentlemen of the jury, the burden rests with the defendant, on his plea of self-defense, to offer you evidence that satisfies you, and if the evidence offered by him is sufficient, or if the evidence offered by the state is insufficient, so that you are not convinced beyond a reasonable *Page 475 doubt of his guilt on the whole case, taking the plea of self-defence and the evidence offered by the state, considering it as a whole, if you have a reasonable doubt of the defendant's guilt, it is our duty of acquit him."
Written charge 1, was properly refused. Burkett v. State,154 Ala. 19, 45 So. 682. Written charges 2 and 3 are substantially covered by the court's oral charge. Refused written charge 4 is abstract, in that includes all of the state's witnesses, and was properly refused in this case. Naugher v. State, 6 Ala. App. 3, 60 So. 458; Chestnut v. State, 7 Ala. App. 72, 61 So. 609; Wright v. State, 156 Ala. 109 47 So. 201. As to any witness who was shown by the testimony to have been biased or interested, the manner in which such testimony was to be weighed and considered was fully covered by the able charge of the presiding judge. Charges 5, 6 and 7 were covered by the court's oral charge.
We have examined the record, and find no reversible error. The judgment of conviction must therefore be affirmed.
Affirmed.
On Rehearing. Refused charge 7 has met with the approval of the Supreme Court in a long line of decisions from Bluett's Case, 151 Ala. 41,44 So. 84, down to the present; the latest being Teel v. State (Ala.App.) 92 So. 518,1 wherein this court followed the holding of the Supreme Court, and, on appeal by the state, the Supreme Court again gave its approval of such a charge. Ex parte State ex rel. Attorney General, 207 Ala. 349,92 South, 606.
Upon a reconsideration of the court's oral charge, we are unwilling to declare that it fairly and substantially covers the matters set out in charge 7, and for this reason the application for rehearing is granted, judgment of affirmance is set aside, the judgment of the circuit is reversed, and the cause remanded.
Reversed and remanded.
1 Ante, p. 405.