Opinion
6 Div. 530.
March 6, 1934.
Appeal from Circuit Court, Cullman County; James E. Horton, Judge.
Louis Freeland was convicted of petit larceny, and he appeals.
Reversed and remanded.
The following charges were refused to defendant:
"1. The Court charges the jury that the humane provision of the law is that upon the evidence there should not be a conviction, unless, to a moral certainty, it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure of proof the law requires.
"2. The court charges the jury that the burden is on the State to convince you of defendant's guilt to the exclusion of every reasonable doubt, and by evidence that overcomes the presumption of facts, that the law surrounds the defendant with, that he is innocent of the crime.
"3. The Court charges the jury that if there is, from the evidence, a reasonable probability of defendant's innocence, the jury should acquit the defendant.
"4. The Court charges the jury that proof of contradictory statements or declarations on a material point made by witnesses for the state may be sufficient to raise a reasonable doubt in the minds of the jury which should authorize an acquittal."
"6. The Court charges the jury that the innocence of the defendant is presumed until his guilt is established by the evidence in all the material aspects of the case beyond a reasonable doubt, to a moral certainty, and it may also be said that evidence of guilt must be strong and cogent, and, unless it is so strong and cogent as to show that defendant is guilty to a moral certainty, defendant should be acquitted."
W. C. Rayburn, of Guntersville, for appellant.
The statute authorizing amendment of complaint, affidavit, or warrant by the solicitor does not authorize an affidavit made before a justice of the peace which charges no offense to be corrected by the solicitor charging an offense. The statute only authorizes the solicitor to amend a complaint pending in the county court. Code 1923, § 3835; Echols v. State, 16 Ala. App. 138, 75 So. 814; Green v. State, 22 Ala. App. 56, 112 So. 98. Charge 1, refused to defendant, is a good charge, and should have been given. Gilmore v. State, 99 Ala. 154, 13 So. 536. Likewise charge 2. Neilson v. State, 146 Ala. 683, 40 So. 221; Amos v. State, 123 Ala. 50, 26 So. 524. Charge 3 has been frequently approved. Charge 4 is a good charge. Williams v. State, 114 Ala. 19, 21 So. 993. Charge 6 states a correct proposition of law. Davis v. State, 8 Ala. App. 147, 62 So. 1027; Salm v. State, 89 Ala. 56, 8 So. 66; Gilmore v. State, 99 Ala. 154, 13 So. 536; McCoy v. State, 170 Ala. 10, 54 So. 428; Bailey v. State, 168 Ala. 4, 53 So. 296, 390; Rosenberg v. State, 5 Ala. App. 196, 59 So. 366, 367.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant was charged in the justice court of Cullman county with the larceny of a coop of chickens. From a judgment of conviction in that court, defendant took an appeal to the circuit court. In the circuit court the solicitor filed a statement as required by section 3843 of the Code of 1923, charging the defendant with the larceny of nine chickens of the value of $6.75, the personal property of B. M. Nunnelley. Demurrer was interposed to the complaint as filed by the solicitor, because the original affidavit as filed and upon which the trial was had in the justice court constituted a variance. The trial in the circuit court was de novo. The original affidavit not being void the complaint based thereon may state the charge so as to cure any amendable defects. Nailer v. State, 18 Ala. App. 127, 90 So. 131.
The evidence tending to connect this defendant with the crime charged was entirely circumstantial. Where this is the case it is error to refuse to give at the request of defendant in writing refused charge 1. Cannon v. State, 17 Ala. App. 82, 81 So. 860; Swoope v. State, 19 Ala. App. 254, 96 So. 728; Gay v. State, 19 Ala. App. 238, 96 So. 646; Gilmore v. State, 99 Ala. 154, 13 So. 536; Ex parte Acree, 63 Ala. 234; Fennoy v. City of Hartselle, 23 Ala. App. 294, 124 So. 399.
Charge 2 is confusing, and for that reason tends to mislead.
Charge 3 ignores a consideration of the evidence.
Refused charge 4 is not sustained by Williams v. State, 114 Ala. 19, 21 So. 993. The charge in that case only relates to the contradiction of a witness as it affects his testimony. The charge here would justify an acquittal on a part of the testimony.
Refused charge 6 asserts correct propositions of law, and should have been given. Gilmore v. State, 99 Ala. 154, 13 So. 536; Bailey v. State, 168 Ala. 4, 53 So. 296, 390. Some doubt was expressed as to a similar charge in McCoy v. State, 170 Ala. 10, 54 So. 428, but the charge in the McCoy Case, supra, is materially different from the charge here.
There are questions presented which will probably not arise on another trial. For the errors pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.