Opinion
1 Div. 869.
November 26, 1929.
Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.
Tee, alias T., Christian was convicted of grand larceny, and he appeals. Reversed and remanded.
Charge 4, refused to defendant, is as follows: "The evidence in this case is circumstantial, and his innocence must be presumed by the jury until the case proved against him is, in all its material circumstances, proved beyond any reasonable doubt; that is to find him guilty as charged, the evidence must be strong and cogent, and, unless it is so strong and cogent, as to show the defendant's guilt to a moral certainty, the jury must not find him guilty."
Inge, Stallworth Inge, of Mobile, for appellant.
Charge 4 is a correct statement of the law, and should be given, where there is no positive proof of the guilt of defendant and the court in its oral charge has not charged the jury as to the weight and effect of circumstantial evidence. James v. State, 22 Ala. App. 183, 113 So. 648; Salm v. State, 89 Ala. 56, 8 So. 66.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
We find no testimony of a "positive," as distinguished from a "circumstantial," nature, in the record, of the guilt of appellant. As was said by Mr. Chief Justice Stone in the case of Salm v. State, 89 Ala. 56, 8 So. 66, 67, so we say here: "There was positive testimony of facts, including the conduct of the defendant, from which it was doubtless contended his guilt should be inferred, but it was not positive testimony of guilt."
In this situation — the same not being covered by or included in the trial court's otherwise comprehensive oral charge, nor by any written requested charge — we hold it was reversible error for the court to refuse to give to the jury appellant's written requested charge No. 4. Salm v. State, 89 Ala. 56, 8 So. 66; James v. State, 22 Ala. App. 183, 113 So. 648.
There is apparent no other question deemed by us necessary to be decided.
The judgment is reversed and the cause remanded.
Reversed and remanded.