4 Div. 78.

40 So.2d 105 (1949)


Court of Appeals of Alabama.

Attorney(s) appearing for the Case

Douglas Brown, of Ozark, for appellant.

A. A. Carmichael, Atty. Gen., and MacDonald Gallion, Asst. Atty. Gen., for the State.

CARR, Judge.

The accused was convicted of manslaughter in the second degree on an indictment which charged murder in the first degree.

Without dispute in the evidence the deceased received a fatal pistol-shot wound. The appellant claimed that the fatality was due to an accident. A brother of the deceased testified to a state of facts which tended to show that the defendant intentionally fired the gun.

It is very clear that the State's evidence was of sufficient potency to warrant the refusal of the general affirmative charge in appellant's behalf. This is particularly true when the question is directed to the charge of manslaughter in the second degree.

We would be out of harmony with the well recognized rule to hold that the lower court was in error in denying the motion for a new trial. Freeman v. State, 30 Ala.App. 99, 1 So.2d 917; Blue v. State, 246 Ala. 73, 19 So.2d 11.

There are no questions properly presented for our review which relate to the rulings of the court incident to the introduction of the evidence.

The record contains a number of written charges which were refused to the appellant. As to the given charges the clerk certifies:

"This is to certify that the given charges was read to the jury by the Hon. J. S. Williams, Judge, and thereafter given to the jury for their information and guidance, and never returned to the custody of the Clerk."

Under these circumstances we are not privileged to review the propriety vel non of the action of the court in the matter of the refusal of certain charges. For aught appearing they may have been substantially covered by written instructions which were given at the instance of the appellant. Title 7, Sec. 273, Code 1940; De Bardeleben v. State, 16 Ala.App. 81, 75 So. 629.

The judgment of the lower court is ordered affirmed.


BRICKEN, P. J., not sitting.


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