
    (82 South. 625)
    EVANS v. STATE.
    (7 Div. 597.)
    (Court of Appeals of Alabama.
    June 30, 1919.
    Rehearing Denied July 21, 1919.)
    1.' Criminal Law &wkey;996(2) — Judgmeni^Correction — Nunc. Pro Tunc.
    A judgment reciting that the jury found the defendant guilty of “assault to murder” was properly corrected at a term of court subsequent to its rendition nunc pro tunc, by referring to the bench notes made at such former term of court, which recited that the jury returned a verdict of guilty of an assault with intent to murder; the verdict of the jury having been lost.
    •2. Criminal Law <&wkey;786(3) — Instructions— Interest of Witness.
    In a prosecution for assault with intent to murder, a charge that “The defendant is interested in the result of the verdict of the jury, and in weighing the evidence the jury may consider his evidence in the light of his interest, together with all the evidence in the case,” was misleading.
    3. Criminal Law <&wkey;825(l) — Instructions— Necessity of Requests.
    The giving of a misleading charge is not reversible error, because the other party can always protect himself from any misleading tendency by explanatory charges.
    4. Criminal Law <&wkey;311, 570(2) — Insanity-Proof.
    A defendant charged with crime is presumed to be mentally capable of forming the intent, and any mental incapacity is a matter of defense, which should be reasonably established to the satisfaction of the jury to such an extent as to raise a reasonable doubt of the defendant’s guilt.
    5. Criminal Law <&wkey;829(l) — Requested Instructions.
    It was not error to refuse requested charges covered by given charges.
    (gcsFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.
    Norman Evans was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    The original record contained no judgment. In response to the first certiotari, the clerk of the trial court forwarded the judgment containing the presently important words:
    “Wo, the jury, find the defendant guilty of an assault to murder as charged in the indictment. It is therefore considered and adjudged by the court that the defendant is guilty of an assault to murder as charged in the indictment.”
    This judgment bears date July 30, 1918. At a special session of the court convened on April 1, 1919, the state moved the court to amend the judgment nunc pro tunc, alleging that the clerk made a mistake or clerical error in the said minutes and judgment, as is shown by the memoranda or bench notes of the court (setting out the judgment as above set out).
    It was agreed that the verdict returned by the jury was lost and' could not be found. The bench notes were as follows:
    “July 31, 1938, jury and verdict guilty of an assault with intent to murder, notice of appeal by defendant,”
    —and the appeal bond. The objection interposed was, briefly, that the term of the court at which the judgment was rendered had adjourhed prior to the date of the filing of the application and prior to the date of the hearing of same, that the recital of the minute entry is the best evidence of the verdict of the jury, and that the memoranda or bench notes are insufficient to permit an amendment to the verdict of the jury as shown by the minute entry, and that the proceedings at once contradict or vary the terms of the verdict of the jury as shown by the minute entry.
    The following charge was given at the request of the state :-
    1. The defendant is interested in the result of the verdict of the jury, and in weighing his ’evidence the jury may consider his evidence in the light of his interest, together with all the evidence in the case.
    The following is charge 4, refused to the defendant:
    The burden is on the state to convince you beyond the reason of a doubt that the defendant committed the offense as charged in the indictment, and that at the time he was mentally capable of forming the intent; and if the state has failed to so convince you, then you cannot convict the defendant of an assault to commit murder.
    Charges 5 and 6 were charges on the presumption of innocence.
    Hugh Reed, of Center, and Hood & Murphree, of Gadsden, for appellant.
    J. Q. Smith, Atty. Gen., and Horace Wilkinson, Asst. Atty. Gen., for the State.
   BRICKEN, J.

The record as originally filed omitted the judgment of conviction. Upon a return to the writ of certiorari, the judgment as so certified disclosed that the defendant was convicted for assault to murder, omitting the recital that the assault was with intent to murder. Thereafter the solicit- or of the Ninth judicial circuit filed a motion to amend the judgment nunc pro tunc. A hearing was had on this motion on April 1, 1919, and granted. Thereafter an additional writ of certiorari was issued from this court, directed to the clerk of the circuit court of Cherokee county, to certify to this court the judgment in the cause as last amended, and a return to this last writ has been made, showing by the judgment as last amended that the defendant was convicted of assault with intent to murder.

The appellant, through his counsel, on the hearing of the motion to amend the judgment nunc pro tunc, filed certain exceptions to the sufficiency of the motion for the amendment. These objections were overruled by the court, and after the state had offered all of its evi-j deuce on the motion, the appellant máde his motion to deny said motion to amend the judgment entry, which motion was overruled and appellant excepted.

The state followed the* proper rule in correcting and having entered the proper 'judgment based upon the bench notes made at a^former term of the court. De Bardeleben v. State, 77 South. 979; Harris v. Bradford, 4 Ala. 214; Glass v. Glass, 24 Ala. 468; Yonge v. Broxson, 23 Ala. 684; Cosby v. State (Sup.) 80 South 803. The various rulings of the trial court in the proceedings to amend the judgment nunc pro tunc were without error.

The only ruling of the trial court insisted upon by the appellant as'being erroneous is the action of the court in the refusal of written charges 4, 5, and 6, and to the action of the court in giving at the request of the solicitor written charge No. 1.

Charge 1, as requested by the state, might have been well refused as being misleading. But the giving of a misleading charge is not reversible error, though it is always better practice to refuse them. Hammond v. State, 147 Ala. 79, 41 South. 761. Where charges are misleading, the other party can always protect himself from any misleading tendencies by explanatory charges. Heningburg v. State, 153 Ala. 13, 45 South. 246. It may be noted in this connection that Mr. Justice Mayfield, in the sixth volume of his Digest, at page 110, par. 141, has expressed the opinion that the rule should be different.

Charge 4, requested by the defendant, is erroneous, in that it places the burden on the state to convince the jury beyond a reasonable doubt that the defendant was, at the time of the commission of the offense, mentally incapable of forming the intent. A defendant charged with crime is presumed to be mentally capable of forming the intent, and any mental incapacity is a matter of defense, which should be reasonably established to the satisfaction of the jury to such an extent as to raise a reasonable doubt of the defendant’s guilt. Williams v. State, 13 Ala. App. 133, 69 South. 376; Gater v. State, 141 Ala. 10, 37 South. 692.

Charges 5 and 6 were amply covered by given charges A and D.

We find no error in the record, and the judgment is affirmed.

Affirmed. 
      
       Ala. App. 367.
     
      
       202 Ala. 419.
     