Opinion
8 Div. 614.
May 16, 1933.
Appeal from Circuit Court, Limestone County; W. W. Callahan, Judge.
Elgie Smith was convicted of manufacturing whisky, and he appeals.
Affirmed.
The following charges were refused to defendant:
"7. The court charges you that the evidence in this case is entirely circumstantial, and, before you can convict the defendant, you must believe from the evidence beyond all reasonable doubt that there is a complete chain of circumstances connecting the defendant with the offense or offenses charged.
"22. 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 the defendant; that before you can convict this defendant the evidence must be so strong that it convinces each juror of the defendant's guilt beyond all reasonable doubt, and if after a consideration of all the evidence, a single juror has a reasonable doubt of the defendant's guilt, then you cannot find the defendant guilty in this case.
"25. The human provision of the law is: that there should not be a conviction upon the evidence, 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 which the law requires."
Charge 29 is the same as charge 25, except that it uses the term "circumstantial evidence."
R. B. Patton, of Athens, for appellant.
Counsel argues for error in refusal of requested charges, citing Bridgeforth v. State, 20 Ala. App. 20, 100 So. 564 (charge 21); Scott v. State, 20 Ala. App. 360, 102 So. 152 (charge 13); Green v. State, 19 Ala. App. 239, 96 So. 651; McHan v. State, 20 Ala. App. 117, 101 So. 81, 82 (charge 22); Price v. State, 20 Ala. App. 201, 101 So. 300, 301 (charge 25); Tatum v. State, 20 Ala. App. 24, 100 So. 569 (charge 29).
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant, together with two others, was found at a whisky still in full operation and when accosted by the officers they ran. This defendant and Wallace were caught and carried back to the still, where there was a conversation between Wallace and defendant. Defendant was crying and Wallace told him there was not any need of that; that they were caught and that was all there was to it; and that a year and a day would settle it. Motion was made to exclude this, the motion was overruled and defendant excepted. The arrest of defendant and Wallace was made in close proximity to the still and only a few moments elapsed between the arrest and the statement above and the still was then running. Everything said and done there was a part of the res gestæ and was admissible in evidence, if such statement related, even remotely to the crime charged.
The court in its general charge had instructed the jury that the burden was on the state to convince the jury by the evidence beyond a reasonable doubt that the defendant was guilty before they would be justified in so finding, and had given several written charges at the request of defendant to the same effect and much more favorable to defendant than requested and refused charge 21, and while the charge asserts a correct principle its refusal was without injury. Edwards v. State, 205 Ala. 160, 87 So. 179.
Refused charge 16 is fully covered by given charges 38, 28, 20, 8, and other given charges and in the oral charge of the court.
Refused charge 7 presupposes that the entire evidence tending to connect the defendant with the offense is circumstantial, whereas there is some positive evidence tending to prove the state's case. Under these conditions this charge is misleading.
Refused charge 22 was held to be good. Green v. State, 19 Ala. App. 239, 96 So. 651; Doty v. State, 9 Ala. App. 21, 64 So. 170; Bell v. State, 89 Miss. 810, 42 So. 542, 119 Am. St. Rep. 722, 11 Ann. Cas. 431; McHan v. State, 20 Ala. App. 117, 101 So. 81; Mitchell v. State, 129 Ala. 26, 17th headnote, 30 So. 348. However, the Supreme Court in Ex parte State ex rel. Attorney General, 213 Ala. 390, 104 So. 773, overrules all of the foregoing cases on that point and holds the charge to be bad. McKenzie v. State, 19 Ala. App. 319, 97 So. 155; Jones v. State, 20 Ala. App. 660, 104 So. 771.
Refused charge 25 is materially different from charge 17 in McKenzie v. State, 19 Ala. App. 319, 97 So. 155, and Price v. State, 20 Ala. App. 201, 101 So. 300. In the instant case others may have been equally guilty, but this fact would not exclude defendant. Judge Foster in the case of Hobdy v. State, 20 Ala. App. 44, 45, 100 So. 571, points out the distinction to be made when the charge should and should not be given. Tatum v. State, 20 Ala. App. 24, 100 So. 569.
The foregoing applies with equal force to refused charge 29. The evidence discloses others who may have been guilty, without affecting defendant's status.
We find no prejudicial error and the judgment is affirmed.
Affirmed.