Opinion
7 Div. 496.
February 5, 1929. Rehearing Denied February 26, 1929.
Appeal from Circuit Court, St. Clair County; Woodson J. Martin, Judge.
Jim Byers was convicted of possessing a still, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Byers v. State, 219 Ala. 10, 121 So. 9.
These charges were refused to defendant:
"4. I charge you, gentlemen, that before you should convict the defendant, the hypothesis if his guilt should flow naturally from the facts proven and be consistent with all the facts in the case.
"5. The court charges the jury that the absence of testimony in a case of this nature is as important as the given testimony and if in this case you find an absence of testimony that leaves a reasonable doubt in your minds after full consideration of all the testimony it is your duty to acquit him.
"6. I charge you, gentlemen, that if you believe that the evidence upon any essential point in the case admits of any reasonable doubt, a doubt consistent with reason, after considering all the evidence, the defendant is entitled to the benefit of it, and should be acquitted."
Frank B. Embry, of Pell City, for appellant.
Appellant's motion for a continuance, based upon the presence of the entire panel of jurors, or a large per cent. of them, in the room when the companion case was tried, should have been granted. Charge 4 should have been given. Jones v. State, 20 Ala. App. 96, 101 So. 67. Charge 5 should have been given. Gaston v. State, 161 Ala. 37, 49 So. 876. Charge 6 was erroneously refused.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
Motion was made by defendant for a continuance of his case on the ground that jurors from which he was to select a jury were present in court and heard the testimony in the case of State v. Caldwell, in which Caldwell was being tried for the unlawful possession of the still here involved. Upon examination it was ascertained that four of the jurors on the regular panel were present and heard the testimony in the Caldwell Case, but they each said that they had not formed or expressed an opinion as to the guilt or innocence of the defendant. The granting of a continuance under these facts was within the sound discretion of the court. Sandlin v. State, 19 Ala. App. 583, 99 So. 784; Cline v. State, 20 Ala. App. 578, 104 So. 347; Sanders v. State, 22 Ala. App. 358, 116 So. 329.
Refused charge, which we have numbered 4, is an argument pure and simple.
Refused charge, which we have numbered 6, is confusing and has a tendency to mislead. The jury was fully charged upon the law of reasonable doubt. Such charges as No. 6 are calculated to confuse the minds of the jury and should never be given.
Causes must be tried on the evidence adduced on the trial, and not on the absence of testimony. For this reason charge 5 was properly refused.
After the charges given at the request of the defendant were read to the jury, the court gave some explanations regarding them; but no exception was reserved to this, and hence this point is not considered.
We find no error in the record, and the judgment is affirmed.
Affirmed.