Every element of an offense must be approved beyond a reasonable doubt before a conviction can be had. Piano v. State, 161 Ala. 88, 49 So. 803; Hogland v. State, 20 Ala. App. 461, 102 So. 784. Venue and time are essential elements of proof resting upon the state. Barnes v. State, 134 Ala. 36, 32 So. 670; Bufkins v. State, 20 Ala. App. 457, 103 So. 902; Melton v. State, 21 Ala. App. 419, 109 So. 114; Wynne v. State, 155 Ala. 99, 46 So. 459; Thomas v. State, 19 Ala. App. 187, 96 So. 182; Richardson v. State, 215 Ala. 318, 111 So. 204; Hurt v. State, 23 Ala. App. 369. 125 So. 787; Savage v. State, 23 Ala. App. 372, 125 So. 790. Conviction for crime cannot be predicated upon suspicious circumstances alone.
Duncan v. State, 278 Ala. 145, 176 So.2d 840; Carpenter v. State, 42 Ala. App. 618, 174 So.2d 336; Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A. L.R.2d 933. Prosecution may not introduce purported confession of defendant stemming from custodial interrogation of defendant unless it demonstrates use of procedural safeguards effective to secure privilege against self-incrimination. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. State has burden of proving every material averment in indictment. Hurt v. State, 23 Ala. App. 369, 125 So. 787. MacDonald Gallion, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.
The State must prove beyond a reasonable doubt every ingredient of the crime charged. Piano v. State, 161 Ala. 88, 49 So. 803; Anderson v. State, 19 Ala. App. 606, 99 So. 778; Hurt v. State, 23 Ala. App. 369, 125 So. 787; Savage v. State, 23 Ala. App. 372, 125 So. 790; Seale v. State, 21 Ala. App. 351, 108 So. 271. A witness should not be allowed to state that a particular shoe would make a particular track, or that the track in question was that of the defendant.
This prohibition was in the appellant's favor and was, in point of fact, more than the appellant was due under the law. If the trial court had so chosen it could have correctly allowed the State to establish the past existence of the written documents and their subsequent loss or destruction, then, after those facts were established, the court could have allowed oral statement of the content. Hurt v. State, 23 Ala. App. 369, 125 So. 787. The availability of that course of action to the trial court must temper this court's opinion on the issue of the ultimate harm of the prosecutor's repeated questioning. Our appellate courts have held that although unfounded inflammatory remarks by the prosecution may result in irreparable prejudice, no iron-clad rule exists by which the prejudicial qualities of improper remarks of counsel can be judged.
"[T]he rule * * * requires the production of the best evidence which the nature of the question admits of." Hurt v. State, 23 Ala. App. 369, 125 So. 787. " '(a) In proving a writing, (b) production must be made, (c) unless it [i. e., production] is not feasible, (d) of the original writing itself, (e) whenever the purpose is to establish its terms' Wigmore, sec 1178."
The State must prove beyond a reasonable doubt every ingredient of the crime charged. Piano v. State, 161 Ala. 88, 49 So. 803; Anderson v. State, 19 Ala. App. 606, 99 So. 778; Hurt v. State, 23 Ala. App. 369, 125 So. 787; Savage v. State, 23 Ala. App. 372, 125 So. 790; Seale v. State, 21 Ala. App. 351, 108 So. 271; Hicks v. State, 247 Ala. 439, 25 So.2d 139. It was the duty of the State to offer evidence tending to establish causal connection between the wound allegedly inflicted upon deceased by accused and the death of deceased. Daniels v. State, 31 Ala. App. 376, 17 So.2d 542; Rector v. State, 11 Ala. App. 333, 66 So. 857; Roberson v. State, 183 Ala. 43, 62 So. 837. Corpus delicti must be proven.
Clements and Clemnts are not idem sonans, and where an indictment charges defendant assaulted one Clemnts but the evidence showed without conflict that the name of the party assaulted was Clements, defendant was entitled to have the evidence excluded on ground of a fatal variance, or the affirmative charge given in his favor. Clements v. State, 19 Ala. App. 640, 99 So. 832; Prince v. State, 20 Ala. App. 35, 101 So. 174; Hurt v. State, 23 Ala. App. 369, 125 So. 787; Booker v. State, 24 Ala. App. 179, 132 So. 70; Painter v. State, 24 Ala. App. 426, 136 So. 277. Where evidence showed without conflict that one of defendants on trial actually committed the assault and evidence for other defendant tended to show that he had nothing to do with the assault, though present, the latter defendant was entitled to have the jury charged that if the assault was committed by the other defendant without the knowledge, connivance or assent of this defendant, then the jury should find this defendant not guilty. Ferguson v. State, 141 Ala. 20, 37 So. 448; Jones v. State, 174 Ala. 53, 57 So. 31. Allowing the Solicitor to make a gruesome argument to the jury, not based on any evidence in the case, simply for the purpose of prejudicing the jury, and over objection of defendant's counsel, constitutes reversible error. Flowers v. State, 15 Ala. App. 220, 73 So. 126; West v. State, 17 Ala. App. 353, 85 So. 833; Taylor v. State, 22 Ala. App. 428, 116 So. 415; Pointer v.
The burden is upon the State to prove beyond all reasonable doubt and to a moral certainty every material allegation of the indictment and the guilt of the defendant. Hurt v. State, 23 Ala. App. 369, 125 So. 787; Prentice v. State, 24 Ala. App. 587, 139 So. 437. Thos. S. Lawson, Atty. Gen., and Clarence M. Small, Asst. Atty. Gen., for the State.
The burden was upon the State to prove every material allegation of the indictment. Hurt v. State, 23 Ala. App. 369, 125 So. 787. The mere finding of prohibited liquors, with no evidence to connect defendant therewith, is not sufficient to sustain a conviction. Bivens v. State, 27 Ala. App. 304, 171 So. 755.
Prosch Prosch, of Birmingham, for appellant. The state has the burden of proving every material allegation or averment, and the charge, assignment 1, should have been given. Savage v. State, 23 Ala. App. 372, 125 So. 790; Hurt v. State, 23 Ala. App. 369, 125 So. 787. There can be no conviction for unlawfully possessing whisky, though defendant be found to be constructively in possession, unless he was conscious of the fact that the whisky was on the premises and permitted it to remain there. Cope v. State, ante, p. 134, 131 So. 4; Gassenheimer v. State, 52 Ala. 313; Cohen v. State, 16 Ala. App. 522, 79 So. 621; Ammons v. State, 20 Ala. App. 283, 101 So. 511; Trammell v. City of Roanoke, 23 Ala. App. 385, 125 So. 795; Copeland v. State, 23 Ala. App. 91, 121 So. 445. The sufficing of evidence to sustain a conviction is properly tested by motion for new trial. Plyler v. State, 21 Ala. App. 320, 108 So. 83.