115 Ala. 99 | Ala. | 1896
1. There is no merit in the 1, 2, 3 and 4 assignments of error, referring to the refusal of the court to allow the witness, Burson, on cross-examination by defendant, to answer the questions, how far Tom Green and his mother lived from him, Burson, last Fall, and who lived with them, etc. Green wms after-wards examined as a witness by the State, but what the fact of how far he or his mother lived from Burson’s in the Fall, and who lived with them, and whether any other persons of the family were at home at that time or not, had to do with the case, remains to be disclosed.
2. The alleged forged order by defendant on A. G, Henry, in the name of the witness, Burson, had been delivered by Henry to Burson, who testified further, that on the night of the day he secured the order from Henry, he procured a warrant from the justice of the peace, against defendant, and went with officers, to where defendant lived, but did not find him, stating that “we went around to look for him; ” ‘ ‘we just hunted around in the country. There were two or three of us in the crowd,'1
3. The evidence showed that a memorandum book was in defendant’s possession when arrested, on and m which appeared certain dates and indorsements, which the evidence tended to show were in his hand-writing, and from wliich a leaf had been torn, which the evidence tended also to show, was the leaf on which the alleged forged order was written. The court allowed the jury to examine the book, and stated to them, that the only dates as to which the evidence tended to show were in defendant’s hand-writing and the torn leaf, were allowed to go to them as evidence; that they were not to look at or consider anything else than the dates, and that part of the book from which a leaf had been- torn on and in the book. The dates and indorsements admitted were each specified. To the ruling of the court admitting this evidence, the defendant reserved a general exception. There was no error in overruling it.—Thornton v. The State, 113 Ala. 43.
4. There was no error in refusing to allow W. J. Thompson to testify, ‘ ‘ that he lived about a quarter of a mile from” Hannah Green and her son, Tom. Its relevancy is not perceptible.
'5. There was no error in refusing to allow the same witness to' answer the question,If he knew the character of Jim Green in the neighborhood in which he lives?” ’No such witness as Jim Green had yet been examined'in the case, and an inquiry into his character whs "entirely irrelevant.
The' reply of the witness to the question as to the character of Tom' Green, whether it was good or bad, that, “ it’s nothing, his mother before him had none,-” was pot improperly excluded. What was said about the character of Hannah Green, the mother of Tom Green, was uncalled for and irrelevant, rendering the answer as a whole objectionable, though a part thereof, as to Tom Green’s character, was unobjectionable. The reply should have been limited to Tom Green’s character. The answer of a witness to a question, that he “had
6. There was no error in tire court saying in his general «charge to the jury, that the 17th day of November, 1896, was Tuesday. The calendar shows that to be a fact, that the jury and everybody else knew, the truth of which required no proof. It was in no way hurtful to defendant.
7. The first charge asked by defendant, “If the jury do not believe the evidence, they will find the defendant not guilty,” was properly refused. The charge is obscure; its meaning difficult to interpret, and it was calculated to confuse and mislead the jury. The evidence as to the guilt or innocence of the defendant was in conflict, — that on the part, of the State, tending to show beyond reasonable doubt, that the defendant was guilty, and that on the part of the defendant, — including the evidence he gave as a witness in his own.behalf, —that he was not guilty; and yet the instruction predicated the finding of the defendant not guilty, upon the disbelief by the jury of the defendant’s own evidence, as well as that offered by the State. Such a charge is not in keeping with the well established procedure for the proper determination of the issues in a cause, in which a party always invites the jury to believe, and avouches the truth of the evidence he introduces. He may not, therefore, in an instruction he asks, predicate a verdict in his favor upon a disbelief by the jury of his own evidence.
If what was said in Seibold v. Rogers, 110 Ala. 445, upon a similar charge is opposed to what we have above said, it must be to that extent modified, so as to conform to what is here decided.
8. Refused charges 2 and 3 were manifestly bad. The dates of the entries in the book, which were allowed in evidence, if dates were important, were, if shown to' have been made by defendant, prima facie correct, and they were certainly evidence, tending to show that defendant owned the book, especially when it was found in his possession.
Refused charges 4, 5, 7, 8 and 12 -were requests for instructions in substantially the same form as charges given at the request of the defendant, with a mere variation in the use of words which in no way changed the
Charges 5, 6, 9, 10, 11, 14, 15 and 16 were properly refused. Waiving any other objection to them, they each proceed upon the mistaken postulate that it was necessary for a conviction of forgery for the State to show that defendant himself wrote the forged order ; whereas, if with intent to utter and publish it, he procured another to write it, .and afterwards uttered and published it as genuine, he would be as culpable as if he had wxitten it with his own hand. Whether he did the one or the other, was for the juxy to detexmxine under all the evidexxce, and the evidence texxded to establish his guilt under the one or the other hypothesis.—Gooden v. The State, 55 Ala. 178 ; Elmore v. The State, 92 Ala. 51; 3 Greenl. Ev., § 104. Charges 13 and 18 were argumentative, misleading and propexdy refused.
We find no error in the proceedings below, and the judgment and sentence of the court are affirmed.
Affirmed.