# Tranholm v. State

> Alabama Court of Appeals · September 24, 1954 · 38 Ala. App. 57

URL: https://www.frixlaw.com/law-library/cases/9698484

## Case

- **Full name:** Craig TRANHOLM v. STATE
- **Court:** Alabama Court of Appeals
- **Decided:** September 24, 1954
- **Citations:** 38 Ala. App. 57; 77 So. 2d 491; 1954 Ala. App. LEXIS 319
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Price
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

On Rehearing
On the trial defense counsel excepted to the court’s oral charge in this manner:
“By Mr. Wallace: The defendant excepts to that portion of the court’s charge wherein the court charged the duty of the jury was first to determine whether or not the defendant would be guilty of murder in the first degree, murder in the second degree or manslaughter in the first degree, and request the court to instruct the jury as to manslaughter in the second degree, which is embraced in this indictment.”
On application for rehearing counsel insists : “The charge pretermits manslaughter in the second degree and if in fact the evidence was such that the matter of manslaughter in the second degree was a jury question, the charge was clearly erroneous. The court had no right to instruct the jury as to how they should proceed in their deliberation, and the charge is therefore erroneous as invading the province of the jury. It is likewise clear that if manslaughter was an element to be considered under the evidence by the jury, then the omission of manslaughter in the second degree from the consideration of the jury would be equally fatal. It should be noted that the court could not have been misled by the exception to his charge inasmuch as the appellant expressly requested the court to charge the jury as to manslaughter in the second degree, which was embraced in the indictment.”
According to the record the instruction complained of was as follows: “Now, gentlemen of the jury, it appears to the court, when you go to your jury room to find the- truth from this testimony the first inquiry you would make is whether or not the defendant is guilty of murder in the first degree or murder in the second degree or manslaughter in the first degree under the rules of law as given you by the court.”
In our opinion this instruction was not invasive of the province of the jury.
As to defendant’s exception on account of the omission to charge on manslaughter in the second degree, in Davis v. State, 246 Ala. 101 , 19 So.2d 358 , Justice Foster used these words in clarifying a statement .by this court in the same case, 31 Ala.App. 508 , 19 So.2d 356 , to the effect that the court committed error in refusing to charge the jury as to the law of manslaughter in the second degree, upon exception by defendant to the oral charge [ 246 Ala. 101 , 19 So.2d 360 ]: “It will be noted that this was a mere omission, and not an erroneous statement of the law nor a charge on the effect of the evidence without a written request to do so. Such an omission ‘cannot be made the basis for a reviewable question. Williams v. State, 147 Ala. 10, 25 , 41 So. 992 ; Jones v. State, 174 Ala. 85, 93 , 57 So. 36 . The party’s remedy in such cases of mere failure or omission is to request special written instructions according to the practice established by the statutes.’ McPherson v. State, 198 Ala. 5, 7 , 73 So. 387 . See, also, Warren v. State, 197 Ala. 313 , 72 So. 624 .”
Therefore, the court’s failure to include in the oral charge an instruction as to manslaughter in the second degree is not subject to review by us. Davis v. State, supra. See also Osborn v. State, 30 Ala.App. 386 , 6 So.2d 461 .
Defendant’s requested special written instruction as to manslaughter in the second degree was charge A. We have held its refusal proper because, as pointed out in the opinion, it was “merely a statement of a legal principle without any instruction as to the effect upon or application to the issues in the case”, and it ignored a consideration of the evidence.
Application overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9698484. Public record. Not legal advice.