43 So. 214 | Ala. | 1907
There ivas no merit in the demurrer interposed to the indictment, and the court properly overruled it.
There was no error committed in permitting the state to show, by the witness Sudduth, tracks of a man on the ground near the door of the car alleged to have been burglarized, and from which whiskey and brandy had been stolen.
There was evidence tending to show flight of the defendant immediately after the discovery of the stolen goods, a part of which — that is, a keg of gin — was found in a “junk nile” in the mine where the defendant was mining; and in this connection it was competent to show that the' defendant was a married man and had a family, and did not carry his family away with him, but sent for them after he had left the county.
Charge 2, refused to the defendant was bad, in predicating an acquittal on a reasonable possibility of the defendant’s innocence.
Charges 3 and 5 weie each argumentative, and for this reason, if no other, were properly refused.
Charge 4 finds a substantial duplicate in one of the written charges given at the request of the defendant. Charge 6 was condemned in the case of Koch v. State, 115 Ala. 99, 22 South. 471.
Charge 7 was held had in the case of Brown v. State, 142 Ala. 287, 38 South. 268. Charge 8 has been repeatedly condemned by this court. See Watkins v. State, 133 Ala. 92, 32 South. 627; Amos v. State, 123 Ala. 54, 26 South. 524; Rogers v. State, 117 Ala. 9, 22 South. 666. Charges 9 and 10 should have been given. A charge similar to these charges was held good in Mitchell v. State, 129 Ala. 23, 30 South. 348.
Charge 11 finds substantial duplicate among the charges given at the request of the defendant, and no error was committed in its refusal.
Charge 12 was the general affirmative charge to find for the defendant, and was properly Refused, as there was evidence from which the jury was authorized to find the defendant guilty.
Charge 16, refused to the defendant, is faulty in several respects. This charge asserts that a probability that some person entered the car, without excluding the defendant from being the probable person, is sufficient to raise a reasonable doubt of the defendant’s guilt. This, without more, is sufficient to condemn this charge.
For the error in refusing defendant’s charges 9 and 10, the judgment must be reversed.
Reversed and remanded.
