40 So. 41 | Ala. | 1909
The conviction was for wantonly or maliciously shooting into a railroad car in which there were human beings, as condemned by Code 1896, § 5360. There was abundant evidence, which, if credited by the jury, would support the verdict rendered.
John Heath testified that he was scuffling with one Moore over a pistol in an effort to prevent Moore from shooting into the same train into which appellant was charged to have shot. On the cross examination the defendant’s counsel propounded this question to the witness: “What reason did you have for thinking Will Tom Moore was going to shoot at the train?” The solicitor’s objection was properly sustained by the court. Whatever the witness’ reason, it was entirely immaterial, and was without the proper field of cross-examination. Whether his reason for his act was a good or bad one, it could not be inquired into for a legitimate purpose on the.trial of this defendant. — Jones on Ev. (2d Ed.) § 137; McDonald v. Jacobs, 77 Ala. 524.
Charge 3, refused to defendant, was properly so treated, because it predicated acquittal upon a. mere belief by the jury that they had a reasonable doubt of defendant’s guilt. It is a reasonable doubt, and not the mere belief that such a doubt appears, that requires the acquittal of a defendant on a criminal charge.
However improper and erroneous may be the argument of counsel to the jury on a trial, the complaining party cannot require the court to aid him in avoiding its effect by the giving of special charges refuting or otherwise answering the argument. The remedy is to object to the argument at the time it is uttered.
There is no error in the record, and the judgment is affirmed.
Affirmed.