Nearer v. State

ANDERSON, C. J.— (1) There was ample evidence from which the jury could find the defendant guilty of murder, and there was no error in refusing his requested charge 1. (2, 8) Defendant’s requested charge 2, if not otherwise bad, instructed that defendant could not be convicted of murder unless his act was deliberate and premeditated. Premeditation is not a necessary ingredient of murder in the second degree.— Strickland v. State, 151 Ala. 31, 44 South. 90. (4) Defendant’s refused charge 6 was properly refused. It is not only misleading, but invades the province of the jury, in instructing that the defendant cannot be found guilty of murder in the first degree, notwithstanding he was equally at fault with the deceased in bringing on the difficulty. If he was equally at fault in bringing on the difficulty, then he was not free from fault, and the jury had the right to determine from all the evidence whether or not the defendant was guilty of murder in the first degree, although the deceased may have also been equally at fault in bringing on the difficulty. (5) There was no error in refusing defendant’s requested charge 16. It submitted a question of law to the jury. It should have hypothesized the elements of self-defense.—Gaston v. State. 161 Ala. 37, 49 South. 876; Greer v. State, 156 Ala. 15, 47 South. 300. (6, 7) Defendant’s refused charge 18 was bad. The mere fact that deceased and defendant were both drinking and under the influence of liquor did not render the defendant guiltless of murder, although he may have honestly thought that his life was in danger. He may have provoked the deceased with the intent to murder him, though he honestly thought his life was in danger at the time of inflicting the fatal blow. The judgment of the circuit court is affirmed. Affirmed. All the Justices concur, except Sayre, J., not sitting.