| Ala. | Nov 15, 1899
Lead Opinion
— The defendant was tried for an assault with intent to murder one Ingersoll by shooting him. The offense was committed in the dark and the main question of fact was as to the identity of the offender. A witness for the State was allowed to testify that just after the shooting he heard one Wallace say the defendant had shot Ingersoll, and that when Wallace said this he was about twenty or thirty feet from and near enough to be heard by the defendant. The conduct of one accused of crime in either admitting guilt or if the circumstances are such as to call for speech, in remaining silent when the charge is made, is ordinarily admissible evidence against him. The bill of exceptions does not purport to set out all the evidence and in the absence of evi-' dence as to what the defendant did or said when the accusation was made we cannot assume that the testimony was incompetent.
As to the propriety of charge 1 the decisions of this court are conflicting. In Ray v. State, 50 Ala. 104" court="Ala." date_filed="1874-01-15" href="https://app.midpage.ai/document/ray-v-state-6508621?utm_source=webapp" opinion_id="6508621">50 Ala. 104 it was said by the court that “every reason whether based on substantial grounds or not, does not constitute a reasonable doubt in law” and accordingly a charge embodying a definition of the term reasonable doubt as “a doubt for which a reason could be given,” was condemned as “calculated to confuse the jury.” This decision was referred to and approved in Peagler v. State, 110 Ala. 11" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/peagler-v-state-6516527?utm_source=webapp" opinion_id="6516527">110 Ala. 11; and in Roberts v. State, 25 So. Rep. 238, and again in Talbert v. State, Ib. 690 the refusal of charges asserting such definition was upheld for the stated reason that “a doubt for which a reason may be given is not necessarily a reasonable doubt although a reasonable doubt may be a doubt for -which a reason may be assigned.” According to common acceptation to give a reason for the existence of a
Charge 2 is subject to the same objections as charge 1.
There Avas no error in the part of the oral charge excepted to.
The judgment Avill be affirmed.
Dissenting Opinion
dissenting. — The case of Peagler v. The State, 110 Ala. 11" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/peagler-v-state-6516527?utm_source=webapp" opinion_id="6516527">110 Ala. 11, is relied on by the majority as opposed to the charge here condemned, but on examination it Avill not so appear. The charge there passed on Avas, “If from the evidence you have reason to doubt the guilt of the defendant, you should acquit,” Avhicli Avas held to exact too high a degree of proof and Avas misleading. That Avas the extent of that decision on the question of reasonable doubt. It did not overrule the cases sustaining this charge. It Avas simply said argumentatively, — overlooking the decisions sustaining the charge, — that counsel seemed to have overlooked the case of Ray, 50 Ala. 104" court="Ala." date_filed="1874-01-15" href="https://app.midpage.ai/document/ray-v-state-6508621?utm_source=webapp" opinion_id="6508621">50 Ala. 104, and Bain v. The State, 74 Ala. 38" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/bain-v-state-6511690?utm_source=webapp" opinion_id="6511690">74 Ala. 38, — holding that a reasonable doubt was a doubt for Avhich a reason could be given, Avas misleading. Bain’s case, Avhen properly construed, does not sustain Ray and overrule Cohen, but Hodge’s case does sustain Cohen in preference to Ray. 'Walker’s case, 117 Ala. 45, a later decision than the Peagler case, sustains the charge, adhering to Hodge’s case.
There can be no question but that every doubt one has,