111 Ala. 45 | Ala. | 1895
1. Four persons went to search defendant’3 house for the stolen property. They had no knowledge of the alleged burglary, mor of the goods said to have been stolen. The owner of the burglarized store and goods stolen, one Shurbert, being examined for the prosecution, was asked: “If before said search, and after they. [the persons who made the search of defendant’s house] had started out, he had described said goods or any part of them [to said parties] or - showed them samples of the same?” The witness replied that he had described, and shown samples of said goods, which he had obtained fro.m his own house and customers, to [said parties] before they started out on said search. John Seay, one of the parties who made the search, on his examination for the State, was asked, if before making the search, the said Shurbert described the goods and showed him samples of them. He replied in the affirmative, and also stated, in' response to a question calling for the answer, that the goods found in defendant’s house corresponded with those shown to him and the other persons with him by said Shurbert, before they made the search. To each of the foregoing questions, before they wére answered, the defendant objected; be-1 cause they called for illegal and irrelevant evidence, and moved the court, after the "witness, Seay, made his answer, as to the correspondence between the goods found and those shown to him before the search, to exclude the same because o'f its illegality and incompetency as evidence. The court overruled the several objections, and admitted the evidence. In this there was manifest error, as held by us-in former adjudications.— Whizenant v. The State, 71 Ala. 383; Dodd v. The State, 92 Ala. 62; Buchanan v. The State, 109 Ala, 7.
2, Tbo oral oljargo of the court was abstract, It
3. The 3d charge requested by defendant was properly refused. The veracity of witnesses is always to be presumed, in the absence of evidence to the contrary In cases of conflict between witnesses on material points, it is the province of the jury, without being chargeable with capriciousness, to reconcile their conflicts, if it may be done by them, consistently with the truth. But, what witness or witnesses they will believe, under all the evidence, is a question exclusively within their province. As a general rule when witnesses are equally credible, and some had means of knowledge superior to others, the evidence of the latter should be given the greater weight. — Corley v. The State, 28 Ala. 22; Ala. Fer. Co. v. Reynolds, 79 Ala. 504; Norris v. The State, 81 Ala. 88; Smith v. The State, 92 Ala. 70; 1 Greenl. Ev., § 13. Said charge was calculated to mislead and confuse the jury. It can not be said ever that it is the duty of the jury to believe all the evidence so as to make all the witnesses speak the truth — unless they can do so consistently with the truth, which the charge fails to hypothesize ; and the latter portion of it is also erroneous, if for no other reason, in that it does not hypothesize the equal credibility of the witnesses, having equal means of knowledge. The vice of the 4th charge in its first instruction, will plainly appear.
Charge 22 assumes as a fact, that there may be a reasonable doubt in the minds of the jury as to the innocence of defendant, and was not free from confusing obscurity, and for these reasons was properly refused. The jury may have had a reasonable doubt, under the evidence, of the innocence of defendant, and yet have believed him guilty beyond a reasonable doubt. A probability of innocence, it has been held, is a just foundation for a reasonable doubt of guilt.— Winslow v. The State, 76 Ala. 48, But reasonable doubt of innocence is
Charge No.2 asked by defendant should have been given. It hypothesized the material allegations of the indictment as necessary to be.shown beyond a reasonable doubt, before the jury could find the defendant guilty.
The judgment of the court below is reversed and the cause remanded.
