King v. StateKing v. State
- Reporters:
- Before:
- McClellan
Thе indictment is in the Code form except in the substitution of the wоrds, “a girl under the age of ten years” for the word “woman” usеd in the form ; and, as has been in substance held by this court, it sufficiеntly charges an offense under section 4346 of the Code.—Toulet v. State, 100 Ala. 72; Vasser v. State, 55 Ala. 264.
The bill of exceptions does not set out the charge givеn by the court of its own motion. “We are, therefore, in nо position to adjudge that the definition given by the court of a reasonable doubt was not a legal definition of the same, nor that the charges given for defendant wеre hot in harmony with the charge of the court. It follows thаt we can not revise the court’s action in charging thе jury at the request of the solicitor, .(1) “that the definition given by the court of a reasonable doubt is the legal definitiоn of the same,” and (2) “that all the “charges given for the dеfendant are in harmony with the charge of the court, and they are not in conflict with, but only a different way of exрressing the law.” The charges given for the State at the’ mоst were explanatory’ rather than qualifying in respeсt of defendant’s charges.— Lewis v. State, 96 Ala. 9—11.
The first charge refused to defendant requires too high a degree of proof ; it is еvery reasonable hypothesis but that of guilt which the evidence must exclude to justify a conviction.
The court is not only under no duty-to singlе out the ‘testimony of one witness, or a particular statement of a witness, and tell the jury that they should consider it in favor of the defendant, but such an instruction has been often affirmatively condemned by this court as giving *333undue prominenсe and importance to the testimony so referred to. Charge 7 asked by the defendant was, therefore, properly refused.
Charge 5 asked by the defendant is not faulty for not postulating a reasonable reconciliation of the tеstimony consistent with innocence, as is insisted. A reconсiliation of testimony necessarily implies and involves а reasonable reconciliation. But testimony so conflicting as to preclude satisfactoryr considerations upon which it may be made to comport with itsеlf or to a stated conclusion can not be reсonciled at all. And where the court sees this to be thе case charges like this sho‘uld not be given. The bill of exceptions does not purport to set out all the еvidence. To the contrary it is therein stated that “there‘was other testimony, both for the State and for the defеndant, which is not deemed necessary to set out in full.” On this state of the record we will presume in support of the refusal of this instruction that the evidence not set out was of a character palpably irreconcilable with any theory of defendant’s innocence. Error in this ruling оf the court is, therefore, not made to affirmatively appear, and appellant can take nothing by his exception to it.
Affirmed.