2 So. 2d 316 | Ala. Ct. App. | 1941
In the court below this appellant (defendant) was, by consent of parties, tried upon the original affidavit, wherein he was charged with the offense that "he did set up, carry on, or was concerned in setting up or carrying on a lottery," etc., in violation of Section 4247, Code of Alabama 1923. The said original affidavit was sworn to and subscribed by one Frank B. Schottgen, and upon his testimony solely the conviction of the accused, in the circuit court, was rested.
Pending the trial, in the court below, innumerable objections were interposed upon the admission of evidence, and, in practically every instance, the objections were overruled by the trial court, to which exceptions, in each instance, were duly and legally reserved by defendant. At the close of the State's case, the defendant promptly made motion to exclude the evidence upon several grounds and upon the grounds that the State's evidence was insufficient and failed to make a prima facie case; and upon the further grounds that the corpus delicti was not proven. The trial court overruled said motion and defendant duly and legally reserved exceptions to this ruling. As a result of many of the foregoing rulings the court erroneously allowed witness Schottgen, the prosecutor in this case, to testify to facts and circumstances not within his personal knowledge and which was hearsay, pure and simple. This fact is definitely apparent also by the statement of said witness on cross-examination wherein he admitted that the testimony given by him was based upon what other persons had said and told to him, and not upon his own knowledge. Said witness was in no manner an expert, and no successful attempt was made to disclose that he was. There is no rule of evidence or principle of law which permits, or justifies, the conviction of a person of crime, upon the opinion, conclusion or surmise of a witness or witnesses. The law is, in criminal prosecutions, where there is no competent and legal evidence from which the jury could draw an inference of guilt on the part of the defendant of the particular and specific charge against him and upon which he is on trial, it is proper for the trial court to grant a motion of the defendant to exclude all of the evidence.
The practice of entertaining a motion to exclude all the evidence offered by the state and discharge the defendant as a test of its sufficiency to sustain the indictment has been expressly approved by the appellate courts of this state in the following cases: Randolph v. State,
As stated, the prosecutor Schottgen, on cross-examination admitted that he did not know of his own knowledge the facts testified to by him on direct examination, and where this affirmatively appears, his testimony should be excluded. McKee v. State,
There is a marked distinction between a motion to exclude all the evidence, and a demurrer to the evidence, and the one is not the equivalent of the other. The effect of a demurrer to the evidence is that the defendant admits every inference or deduction the jury could legally make, and which the testimony tends to establish, and the defendant by pursuing this course burdens himself with the rigid technical rules and waives his rights and privileges conferred by the Constitution and the common law. It has been termed a dangerous practice in a criminal case and as a rule does not meet with the approval of the courts.
There was error also in the ruling of the court in allowing testimony of a purported confession by the defendant. It affirmatively appears there was no legal evidence adduced in this case to establish the corpus delicti; it is elementary where this appears to admit evidence of a confession of the defendant is error to a reversal, as the corpus delicti must of course be shown independently of the confession of the accused. McPherson v. State,
Any person charged with, or on trial for, a criminal offense is entitled to a fair and impartial trial, for the law is, that no person shall be accused, arrested, detained, or tried, except in the manner and form provided by law. It makes no difference how guilty a person might be, these sacred and valuable constitutional and statutory rights of the citizen cannot be disregarded by trial courts, over the objection of the accused, and such unlawful acts affirmed, on the ground that the citizen was not injured by thus being deprived of his rights. It is difficult to understand how it is possible that a citizen is not injured when he is deprived of such rights. As stated in the case of Patterson v. State,
From what has hereinabove been said, and upon authority of Hallmark v. State,
Reversed and remanded. *118