Bryant v. State

68 So. 704 | Ala. Ct. App. | 1915

THOMAS, J.

(1) There being evidence in the case from which the jury might have inferred the defendant’s guilt, and sufficient prima facie to overcome the presumption of innocence, the court committed no error in refusing the affirmative charge requested by the defendant.—Jones v. State, 90 Ala. 630, 8 South. 383, 24 Am. St. Rep. 850; Robinson v. State, 8 Ala. App. 435, 62 South. 372; Minto v. State, 8 Ala. App. 306, 62 South. 376; Fulton v. State, 8 Ala. App. 257, 62 South. 959.

(2) Charges 341, 5, and K were properly refused, besides being covered by given charge G.—A. G. S. R. R. Co. v. Robinson, 183 Ala. 265; 62 South. 813.

Charge 22, if a correct exposition of the law, is covered by given charges 11, 15, 16, 818, and 25.

Charges D and C, besides being confusing, appear to have been covered by other given charges on the same subject — Nos. 11, 15, 16, 818, and 25.

(3) Charges J and 10 were properly refused, if for no other reasons, as being confusing and misleading.— 1 Mayf. Dig. 170, § 14.

Charge 12 is covered by given charge 15, charge 21 by given charge 8, charge 9 by given charge 25, and charge E, by given charge -818. .

(4) Charge H is so patently bad as not to require comment.—Shepperd v. State, 94 Ala. 102, 10 South. 663.

(5) Charge 999, if not otherwise faulty, was properly refused, as it ignored a consideration of the evidence.—Collins v. State, 138 Ala. 57, 34 South. 993; Ex parte Acree, 63 Ala. 234.

Charge 18 was bad for the same reason.—Sanford v. State, 143 Ala. 82, 39 South. 370.

(6) Charges 387, 756, and M each belong to a class of charges that have been condemned under the later authorities.—Stevens v. State, 6 Ala. App. 6, 60 South. 459, and cases there cited.

(7) Charge 28 was properly refused. It is clearly different from similar charges approved in 1 Mayf. Dig. 183, § 36, since having a reasonable doubt of guilt is not the same thing as having an ability to reconcile evidence.

(8) Charge 84 states no proposition of law,, as the measure of punishment for crime is a matter left to the discretion of the jury, to be exercised as their own judgment may prompt within the limits fixed by the statute. Within these limits (a minimum and a maximum) the: law fixes no rule for guiding them.

(9) Charge 59 was also properly refused.—Sherrill v. State, 138 Ala. 3, 35 South. 129; Compton v. State, 110 Ala. 35, 20 South. 119; 1 Mayf. Dig. 168, § 11.

(10) There is merit, however, in the contention that, since the charge and conviction is for a felony (Code, §§ 6585, 6756), the judgment is erroneous in failing to recite or show that the defendant was asked by the court if he had anything to say why the sentence of the law should not be passed upon him.—Crim v. State, 43 Ala. 53; Mullen v. State, 45 Ala. 46, 6 Am. Rep. 691; Boynton v. State, 77 Ala. 33; Perry v. State, 43 Ala. 23; Burch v. State, 55 Ala. 136; Schab v. Berggren, 143 U. S. 447, 12 Sup. Ct. 525, 36 L. Ed. 218; Spigner v. State, 58 Ala. 424.

(11) The end and aim of the law in requiring such question to be asked of the defendant will be fully met, however, by reversing the judgment merely back to the sentence, leaving the judgment of conviction to stand, and directing the court to resentence the prisoner, after first asking such question, unless defendant’s answer discloses good reasons why he should not be sentenced.-Reynolds v. State, 68 Ala. 502; Ex parte Robinson, 183 Ala. 30, 63 South. 177; Minto v. State, 9 Ala. App. 98, 64 South. 369.

It follows that judgment is here rendered affirming the judgment appealed from, except as to the part.of it imposing sentence. As to such part the judgment is reversed,, and the cause remanded, that the defendant may be sentenced in conformity to the requirements of law.

Affirmed in part, reversed in part, and remanded.