Fountain v. State

| Ala. | Nov 15, 1893

McCLELLAN, J.

What purports to be a motion for a new trial and affidavits filed in support thereof, are copied in the transcript before us. This motion and these affidavits are, of course, no'part of the record of the trial court. Nor are they embodied in or shown by the bill of exceptions taken on the trial. Presented as they are, they are not presented at all in legal contemplation for revision by this court. We may say, however, that had the motion, the evidence in support of it, the judgment of the City Court upon it, and the exception to that judgment been properly shown by the bill of exceptions, the exception would be unavailing to the appellant. The verdict was not contrary to the law or the evidence, as insisted by the motion, in the sense of requiring the lower court or this to grant a new trial. — Cobb v. Malone & Collins, 92 Ala. 630" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/cobb-v-malone-6514331?utm_source=webapp" opinion_id="6514331">92 Ala. 630. The exceptions taken on the trial, upon which the motion is also based, were, as we shall presently see, without merit. And so far as the motion is predicated upon newly discovered evidence, which is the only other reason advanced for the granting of a new trial, it is wholly insufficient in its averments, and entirely unsupported by evidence as to defendant’s diligence, or lack of fault in respect of the discovery and production of the alleged newly discovered evidence on the trial.

The evidence on the trial is set out in full in the bill of exceptions with the statement that “this is substantially all the evidence in the case.”

2. The' trial court committed no error in its rulings on defendant’s requests for instructions. There was evidence from which the guilt of defendant might have been inferred, and hence charge 1 requested by the defendant, requiring an acquittal if the jury believed the evidence was properly refused. Charge 2 was bad in that it singled out and gave undue prominence to the evidence of one witness, and is, therefore, argumentative in its character. Charge 3 is also argumentative in form and substance, and is invasive of tlie province of tbe jury in that it prescribes the weight they shall give to a particular fact dissociated from other facts which the evidence tended to establish. Charge' 4 is bad in that it gratuitously ■ assumes that the indictment charges that the defendant sold a “yoke of oxen.” Charge 3, above referred to, is open also to the infirmities which affect charge 4. Charge 5 is faulty, for that, among other things, it invades the province of the jury by declaring to be a presumption of law what, at most, could be only a presumption of fact. Charge 6 is of a class very many times condemned by this court. The jury should not be told to look to this fact, or that they may consider that fact, &c., <fcc., in reaching a conclusion as to the guilt of the defendant, or as to the existence of any material element of the offense charged. Moreover, this charge is abstract. There is no evidence in the case that the property surrendered by the defendant was of sufficient value to satisfy the mortgage debt.

It may be conceded that the bad character of defendant for truth and veracity would not, of itself, have any bearing-on the question of the guilt of the defendant abstractly considered, or, in other words, that the fact that defendant was unworthy of credence, did not tend to show that he was guilty of selling mortgaged property, as charged in the indictment. But the defendant having testified for himself to facts tending to show his innocence, the testimony of other witnesses that his character for truth and veracity were bad, and that they would not believe him on oath, was important for the jury to consider in reaching a conclusion of guilt vel non; and the necessary tendency of this charge was to mislead them from a consideration of defendant’s character in this respect in weighing the evidence. On this ground, if not on others, the 7th charge was properly refused.

There is no error in the record, and the judgment must be

Affirmed.