Farley v. State

72 Ala. 170 | Ala. | 1882

STONE, J.

The general charge to the jury in this cause contains several separate and separable clauses. There was a general exception reserved to the charge, without specifying any particular clause or clauses excepted to. The rule established by this court, in such case, is, that unless the entire charge is faulty, there will not be a reversal, although in some of the separable clauses the primary court may have erred. The party excepting must point out the part of the charge in which error is supposed to have been committed, and make that the subject of his exception. We need not state the reasons on which this rule rests. They have been too often declared to need repetition.—Elliott v. Stocks, 67 Ala. 336; S. & N. Railroad v. McLendon, 63 Ala. 266. Many parts of the general charge are free from error, while only one clause is here objected to.

The charge asked and refused should not have been given, for more reasons than one. It asked the court to instruct the jury, as fact, that “ there is [ was) no proof as to whether he [the defendant] had a pistol or not.” McVay testified, that he had passed within six or eight feet of defendant, as he lay on the ground, but that he did not examine him. That he did not examine him, does not necessarily imply that he did not lookat him. Nor, if the charge had been stated hypothetically, could it be affirmed, as matter of law, that unless the witness looked “ to see whether he had a pistol or not,” then “ there could be no inference that the pistol was concealed.” Such charge requires too strict a measure of proof, and would be an invasion of the province of the jury. Rules of law must be declared by the court, while inferences of fact are for the jury. That a defendant, afterwards seen with a pistol, had previously had it concealed about his person, a jury may be, and often is, convinced beyond a reasonable doubt, although no witness does or can testify that he had looked to see whether he had a pistol or not.—1 Brick. Dig. 338, § 41; Ib. 340, § 65; Carter v. The State, 33 Ala. 429; Clark v. Goddard, 39 Ala. 164; Ashworth v. The State, 63 Ala. 120; Robinson v. Bullock, 66 Ala. 548.

Affirmed.