Appellant was convicted in the court below of manslaughter in the first degree, based on an indictment charging murder in the second degree.
Admittedly, the defendant stabbed the deceased in the chest with an ice pick, from which infliction death ensued forthwith. Appellant claimed self defense.
The record proper is in all respects regular.
There are three questions presented for review. The coroner, who was also an undertaker of forty years' experience in his profession, was permitted to state that the wound he found on the body of the deceased, in his judgment, might have been caused by an ice pick. Pretermitting a decision on whether or not this was an unauthorized conclusion of the witness, we hold that the statement could have in no manner affected the rights of the defendant. She admitted, while testifying, that she inflicted the fatal wound with an ice pick. There is no evidence to the contrary.
The solicitor asked a witness whether or not he knew the defendant and deceased had been sleeping together. His reply, "I don't know", left the inquiry unharmful to appellant.
The only charge refused to the defendant is: "If there is one single fact proved to the satisfaction of the jury which is inconsistent with defendant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit."
In some early cases and as late as the decision in Roberson v. State, 175 Ala. 15, 57 So. 829, the charge was approved. However, the later cases have departed from this early holding, and it can now be authoritatively declared that it is proper to refuse the instruction in question. Ex parte Davis et al., 184 Ala. 26, 63 So. 1010; Burkett v. State,215 Ala. 453, 111 So. 34; Wilson v. State, 243 Ala. 1,8 So.2d 422; Robinson v. State, 243 Ala. 684, 11 So.2d 732.
We have treated all questions presented for review by the record in this cause. Wetzel v. State, ante, p. 32,21 So.2d 557.
An affirmance of the judgment of the primary court is ordered.
Affirmed. *Page 136