The contention of the state was that in an attempt to murder one Susie Williams the defendant fired a pistol at her, and that deceased, a bystander, was killed. There was evidence tending to support this contention. The defendant, on the contrary, while admitting the killing, claimed that it was purely accidental, and the evidence offered in his behalf tended to support this theory. The cause was submitted to the jury under a careful and able charge of the court trying the case, during which the different degrees of homicide were clearly and concisely explained in detail, and in such manner that the average juror could easily understand.
There was evidence sufficient to sustain either of the charges embraced in the indictment, and written charges to the effect that under the evidence defendant could not be guilty of murder or manslaughter were properly refused. Martin v. State,81 So. 851.1 And under circuit court rule 35 (175 Ala. xxi) the court will not be put in error for refusing the affirmative charge, or *Page 7 for refusing a motion for new trial, where the record does not affirmatively show that the prosecution's failure to prove venue was brought to the court's attention before the argument was concluded. Jones v. State, 13 Ala. App. 10, 68 So. 690; Pounds v. State, 15 Ala. App. 223, 73 So. 127.
In a case of homicide, the malice necessary to sustain a conviction for murder may be presumed from the use of a deadly weapon, unless the circumstances surrounding the killing rebut the malice. In this case it is not claimed that defendant had malice towards the deceased, but malice, if such he had, existed towards Susie Williams, his paramour, whom he was trying to kill, and such malice as he entertained towards her was available to the state in making out its case against the defendant. In this the state was not forced to rely on the fact that the killing was done with a deadly weapon; but there was some evidence of expressed ill will by the defendant towards Susie Williams, the woman it is claimed he was trying to kill.
Charge 6, refused to the defendant, is almost identical with charge 8 given at the defendant's request, and for that reason was properly refused.
The remarks of the solicitor, referred to in the court's oral charge, are not incorporated in the bill of exceptions, nor are they set out as grounds for a new trial, nor in any other way by which this court can be called on to review them. It appears, however, that the trial judge was at great pains to repair whatever injury had been done by excluding the remarks and by charging the jury specifically and pointedly not to consider them. The court might even have gone further and granted a new trial on that ground, if it had been asked, or, if proper motion had been made at the time, withdrawn the case from the jury; but the question is not here presented in such manner as it can be reviewed.
Charge 2 was bad because, among other things, it is elliptical. Charges 4, 5, and 7 were covered by the court's oral charge, and were for that reason properly refused. Watkins v. State, ante, p. 3, 82 So. 628.
Charge 9 asks for an instruction for an acquittal of all crime, when, under the hypothesis stated, defendant could be guilty of manslaughter in the second degree.
Charge 10 confines the accidental killing to the deceased, pretermitting a consideration of the real questions involved.
We find no error in the record, and the judgment is affirmed.
Affirmed.
On Rehearing. By inadvertence this cause was first assigned to MERRITT, J., who did not sit during the argument of the case on submission. The opinion heretofore prepared by him is therefore withdrawn, and the foregoing opinion is substituted as the opinion of the court. The conclusions of law being the same, the application for rehearing is overruled.
Application overruled.
1 17 Ala. App. 73.