Bowen v. State, 140 Ala. 65

Bowen v. State

140 Ala. 65 | Ala. | 1903

SHARPE, J.

Defendant Avas convicted of murder in the second degree upon an indictment charging him with the murder of CoAvan. It Avas proAred that shortly after pistol shots Avere heard the dead body of Cowan Avas found in a field about Avliere the firing Avas done, and that a shot Avound caused the death. The evidence adduced to prove the defendant fired the fatal shot Avas circumstantial, and consisted in part of testimony tending to shoAv that on the morning of the killing, defendant made inquiries of OoAvan’s AA'hereabouts; was seen near the place of the killing just before it occurred; that on the day next before that occurrence, Cowan had, after winning money at dice from defendant, swapped watches with him, paying a difference in money, and then won back the money so paid. In connection with such evidence the State was entitled to prove as tending to show a motive for the killing that on the evening before it oc*69curred Cowan wore a cord with defendant’s watcb attached thereto, and that when the body was found the cord was on it and the watch was gone.

The court properly sustained an objection to a question asked by defendant’s counsel of a witness as to whether-persons other than defendant had gambled with Cowan, and it likewise properly sustained objections to questions addressed to a female witness as to where her husband was living, and whether'he had not oh one occasion shot at Cowan, and whether she and her husband were living apart from each other on account of her relations with Cowan. There was no evidence to connect with the crime, either the husband mentioned or any one except defendant who had gambled with Cowan, and proof that other persons had motives to harm him would not have so connected them, and would not have been in any way inconsistent with similar motives on defendant’s part, or with his guilt.-Tatum v. State, 131 Ala. 32; Baker v. State, 122 Ala. 1; Banks v. State, 72 Ala. 522.

The first and sixth of the refused charges were misleading in that they negative the sufficiency of the evidence to convict if only it could be reconciled with the theory that some person other than the defendant may have done the killing, without regard to whether such theory was based on evidence, or was speculative merely. Turner v. State, 124 Ala. 59; Bones v. State, 117 Ala. 138.

The second charge leaves out of consideration that the doubt which authorizes an acquittal is a reasonable doubt.

The test of the sufficiency of evidence proposed in charge 3 is not one recognized by law and was not practicable on application. See Amos v. State, 123 Ala. 50. The fourth charge was bad in using the word “hypothesis” without qualifying it with the word “reasonable” or its equivalent.-Webb v. State, 106 Ala. 52; Bones v. State, 117 Ala. 138.

In implying that a verdict should be formed by a process of excluding probabilities of innocence, the seventh charge was calculated to confuse the jury.-Glenmore v. State, 99 Ala. 154.

*70The test of the sufficiency of circumstantial evidence for conviction as laid down in the 5th charge is in substance the same as that which in Pickett v. State, 115 Ala. 42, 50, was affirmed to be correct. In the refusal of this charge there was error for which the judgment must be reversed.

Reversed and remanded.