Opinion
7 Div. 388.
June 30, 1928. Rehearing Denied August 7, 1928.
Appeal from Circuit Court, Cleburne County; R. B. Carr, Judge.
Jeff Barnes was convicted of manufacturing whisky, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Barnes v. State, 118 So. 241.
The following charges were refused to defendant:
"(1) If, after the jury has considered the evidence in this case, there is any one juror who feels that, before he would be satisfied to convict the defendant, he would like to have further testimony sustaining the conclusion that the defendant is guilty, then the jury would not be authorized to convict the defendant."
"(2) If any member of the jury has, after the jury has considered the evidence, a feeling that he would like to have other evidence sustaining the conclusion of the defendant's guilt before he would be satisfied with a verdict of guilt, then the jury would not be authorized to render a verdict of guilty."
"(3) If there is any fact proven in this case to the reasonable satisfaction of the jury, which after the testimony has been considered leaves the mind of any juror in a state of doubt as to the guilt of the defendant, then the jury should not convict the defendant.
"(4) If any member of the jury has even the slightest doubt of the defendant's guilt, which reasonably arises out of the evidence, after the jury has considered the evidence, then the jury would not be authorized to convict the defendant.
"(5) The slightest doubt of the defendant's guilt reasonably arising out of or suggested by the evidence, or any part thereof, after the jury has considered the evidence, would authorize the jury to acquit the defendant."
"(7) When the court tells you, gentlemen, that the defendant is presumed to be innocent in this case, the court means for you to understand that you are to take as true the innocence of the defendant, and to so consider him, until the evidence produced before you becomes so strong as to wholly remove this presumption, and, if this situation does not arise honestly in your minds, then you should not convict the defendant."
"(11) Gentlemen, the defendant is being tried in this case upon a charge commonly called 'violating the prohibition law'; but the court charges you that, when it comes to weighing and considering the testimony in the case, the rules are exactly the same as are applied in the trial of any other charge of crime, and your duties are the same. Your conclusions in the case must be based upon the testimony, and, if you are not convinced beyond all reasonable doubt of the defendant's guilt, then your duty would be to acquit him.
"(12) Your personal feelings about the enforcement of the prohibition law, if you have any such feelings, have no place in this trial, and if, leaving out any such feelings, if you have them, any member of the jury has a reasonable doubt of the defendant's guilt arising out of the testimony, then the jury should not, and could not, legally convict the defendant.
"(13) If from the testimony the defendant is probably innocent, you should acquit the defendant."
Hugh Walker, of Anniston, for appellant.
Counsel argue for error in refusal of charges, and cite Bardin v. State, 143 Ala. 74, 38 So. 833.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The evidence for the state, if believed beyond a reasonable doubt, is sufficient to sustain the verdict, and counsel for appellant frankly admits that the court committed no reversible error in its various rulings upon the admission of testimony. It is insisted, however, that the court did commit error in the refusal of certain charges requested in writing by defendant, which we now proceed to consider.
Refused charges 4 and 5 base an insistence for an acquittal upon "the slightest doubt." These charges place too much burden upon the state. The doubt of defendant's guilt must be reasonable and must grow out of the evidence in the case. This applies, also, to charges 1, 2, and 3. These charges are bad.
Refused charge 6 was covered by the court in his oral charge.
Refused charge 7 does not correctly state the rule regarding the presumption of innocence. The rule is that the defendant is presumed to be innocent of the crime charged, and this presumption attends him during the trial, or until the evidence for the state overcomes this presumption beyond a reasonable doubt. The charge, as framed, is misleading.
Refused charge 11 is an admonition which this court has many times thought necessary to state in its opinions declaring the law in prohibition cases, to counteract any tendency towards a carelessness in the trial of persons charged with violation of the prohibition laws. The statement is an admonition, and as such is an argument, and has no place in a requested written charge. The foregoing is also applicable to refused charge 12.
Refused charge 13 is held to be good in Bardin v. State, 143 Ala. 74, 38 So. 833, and in Fox's case, 17 Ala. App. 559, 87 So. 621, this court dealt with a similar charge, not based upon a consideration of all the testimony. But in Edwards' Case, 205 Ala. 160, 87 So. 179, it was pointed out that, where the jury had been charged that, before the defendant could be convicted, the jury must be convinced of his guilt beyond a reasonable doubt — "a requirement far more rigorous against the state and far more favorable to defendant" — there could be no injury to the defendant in refusing the charge. We so hold. There is no error in the record, and the judgment is affirmed.
Affirmed.