Opinion
7 Div. 150.
February 9, 1926.
Appeal from Circuit Court, Shelby County; E. S. Lyman, Judge.
M. M. Brasher was convicted of possessing a still, and he appeals. Affirmed.
Frank Brasher, a witness for defendant, testified that he and defendant had gone to one Gilbert's to get a team to move onto his place, and that in returning came upon the still at which defendant was captured, where they stopped, and witness partook of some of the beer. He further testified that they did not get the team, that Gilbert told them they could not get it; whereupon this question was propounded: "What reason did he give as to why you could not get the team?" The objection by the state to this question was sustained.
The following requested charges were refused to defendant:
"(12) No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof the law requires."
"(14) The court charges the jury that, if there are two theories in this case, and one theory is consistent with the defendant's innocence, and the other theory is consistent with the guilt of some other person, and the jury can reconcile the evidence by adopting that theory which is consistent with the defendant's innocence, the jury should acquit the defendant by adopting that theory.
"(15) The court charges the jury that, if there are two theories in this case, one theory consistent with the guilt of the defendant, and the other theory equally consistent with his innocence, and both supported by the evidence in this case, justice and humanity alike demand that the jury should adopt that theory which is consistent with the innocence of the defendant."
"(17) The court charges the jury that each and every one of you is entitled to have his own conception of what constitutes a reasonable doubt of the guilt of this defendant; that, before you can convict this defendant, the evidence must be so strong that it convinces each juror of defendant's guilt beyond all reasonable doubt, and, if, after a consideration of all the evidence, a single juror has a reasonable doubt of defendant's guilt, then you cannot find defendant guilty."
L. H. Ellis, of Columbiana, for appellant.
Brief of counsel did not reach the Reporter.
Harwell G. Davis, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty. Gen., for the State.
There was no error in refusal of requested charges. Davis v. State, 98 So. 912, 19 Ala. App. 551. Self-serving declarations are not admissible. Register v. State, 94 So. 778, 19 Ala. App. 11; Henderson v. State, 95 So. 57, 19 Ala. App. 80; Gilbert v. State, 100 So. 566, 20 Ala. App. 28; Conner v. State, 98 So. 482, 19 Ala. App. 444.
The written charges requested by defendant were all properly refused as stating incorrect propositions of law, or they were covered by the court's oral charge and the written charges given at the request of defendant. Charges where acquittal is based upon supposition have been condemned. This is true of charge 5. Charge 11 was amply covered by the court's oral charge. Charge 12 is not applicable except in cases of circumstantial evidence, and not then unless based upon a consideration of all the evidence. Charge 14 is abstract. Charge 15 is invasive of the province of the jury. Charge 17 has recently been condemned, both by this court and the Supreme Court. Charge AA was covered by given charge BB and by the oral charge of the court.
Defendant offered to prove that, when defendant saw the still, he exclaimed, "Look yonder, there is a still!" This was not a part of the res gestæ and was a self-serving declaration. The evidence was not admissible. Henderson v. State, 95 So. 57, 19 Ala. App. 80; Connor v. State, 98 So. 482, 19 Ala. App. 444.
That the defendant and his brother failed to get a team from one Gilbert on the morning of their arrest is entirely irrelevant.
We find no error in the record, and the judgment is affirmed.
Affirmed.