The defendant was tried and convicted of murder in the first degree and sentenced to suffer the death penalty. This is the third appeal in this case, the defendant having been convicted twice previously, and sentenced to death, and each time on appeal the case was reversed, "We find no exception in the record to any ruling of the court, which was not determined on the former appeal, or which has not been adjudicated in other cases. Under the statute, upon the request of the defendant, the judge was required to give his charge to the jury in writing.
The first exception is to the entire charge as a whole. The rule in such cases is, that if any part of the charge is free from objection, the exception can not be sustained.—L. & N. R. R. Co. v. Orr, 94 Ala. 602; Gilmer v. The State, 89 Ala. *18121; Williamson v. The State, 83 Ala. 68; Irwin v. The State, 50 Ala. 181. We are of opinion tbe entire charge, and every proposition of law asserted, is correct.
It is argued tliat tbe court failed to instruct tbe. jury as to tbe law upon certain material facts, introduced in evidence on tbe trial. Tbe charge nowhere unduly emphasizes, or gives undue prominence, to any fact, or tbe testimony of any witness. Tbe constituents of the degrees of murder and of manslaughter are correctly and clearly stated, and it is left to tbe jury to find, from the facts, of which of tbe degrees of murder or manslaughter, if of either, tbe defendant was guilty.
We can not saction tbe doctrine, that when tbe court is required to charge tbe jury in writing, it will be reversible error if tbe court is unable at the time tbe charge is prepared to remember all-the evidence introduced on tbe trial of tbe protracted case, where a dozen or more witnesses are examined, and to charge specially with reference to all tbe facts. If this was law, but few convictions would stand. Tbe contention is without authority to support it, and it is unreasonable. It is tbe privilege of tbe defendant to call tbe attention of tbe court to any matter contained in tbe charge, deemed objectionable, and if tbe objection is well founded, unless 'corrected, it will be reversible error. It is also tbe privilege of tbe defendant to prepare written charges upon any and every question of law considered favorable to him, and if correct, a refusal to give them is reversible error. All possible safe-guards, to protect a defendant on trial charged with a criminal offense, are preserved for bis protection. A party has the right to waive an exception to any objectionable charge, if be sees proper to do so.—Holland v. Barnes, 53 Ala. 83.
Tbe portion of the general charge specialty excepted to has been so often adjudicated, we will do no more than cite a few of tbe more recent cases.—Hornsby v. The State, 94 Ala. 55; Cribbs v. The State, 90 Ala. 613; Lang v. The State, 84 Ala. 1; Mitchell v. The State, 60 Ala. 26.
Tbe objection to tbe testimony of witnesses describing tbe surroundings of tbe place where tbe crime was perpetrated, was considered on a former appeal, and declared to be competent evidence.—State v. Green, 97 Ala. 59. This testimony was admissible, for two reasons. It enabled tbe jury to better understand tbe evidence of other witnesses, and it was not irrelevant upon tbe question of previous design. Much of tbe adjacent land across which'the defendant and deceased passed was open, and any movements liable to be *19seen. Tlie evidence tends to sbow tbe exact locality of tbe crime was bidden from view, a.nd defendant’s knowledge of tbe character of tbe surrounding country and tbe seclusion of tbe particular place was fully established.
There is no error in tbe record, and tbe judgment of tbe court must be affirmed. It appearing that the day fixed for tbe execution of tbe sentence of tbe law has passed, this court now appoints tbe 15th day of September next, on which day tbe proper officer of Sumter county will execute tbe sentence of tbe law, as pronounced by tbe court.
Affirmed.