Little v. State, 89 Ala. 99

Little v. State

89 Ala. 99 | Ala. | 1889

McCLELLAN, J.

There was no merit in the defendant’s motion to strike the statement of the cause of complaint filed by the solicitor, from the file. The statute prescribing the form of the complaint (Code, § 4231) was strictly complied with; and the statement filed involved no variance from, or repugnancy to the cause of complaint as set forth in the affidavit, upon which defendant was tried in the County Court.

2. The definition of a reasonable doubt, which authorizes and requires an acquittal, given in the charge requested by the State, is in harmony with the rule on that subject which is fully established by the adjudications of this court. — Farrish v. State, 63 Ala. 164; Coleman v. State, 59 Ala. 52; Humbree v. State, 81 Ala. 67; Kidd v. State, 83 Ala. 58; Perry v. State, 87 Ala. 30.

3. A trespasser is defined to be one who does an unlawful act, or a lawful act in an unlawful manner, to the injury of the person or property of another. According to one phase of the evidence, the party assaulted went lawfully upon the premises of the defendant’s father, for a lawful purpose, and was guilty of no wrongful or unlawful act while he remained there. If it be conceded that, on another phase of the testi*103mony, the conduct o£ the prosecutor had, at the time of the difficulty, rendered himself a trespasser; yet it was for the jury to pass upon'these divergent aspects of the evidence, and reach their own conclusion as to whether the prosecutor was a trespasser, if, indeed, that' were a material fact in the case. The first charge requested by the defendant, involved the determination of this issue of fact by the court, instead of the jury; and for that reason, if not for others, was properly refused.

4. The second instruction requested by the defendant is in the following language: “Unless you are convinced beyond all reasonable and to the exclusion of every other hypothesis, that defendant struck with an axe, your verdict should find defendant not guilty.” The confusion of this charge, resulting from the omission of the word doubt from its first clause, was a sufficient reason for its refusal. Another justification of the court’s action upon it is found in the absence of any qualification of other hypotheses which must be excluded. It is not the law, that the evidence must exclude every other hypothesis than that of defendant’s guilt, or than the existence of the facts essential to conviction. The rule goes no further than to the exclusion of other reasonable — not speculative, imaginary, possible, hypotheses.—Perry v. State, 87 Ala. 30; Blackburn v. State, 86 Ala. 595.

5. Defendant’s third and fourth charges were properly refused. They were arguments, which this court has many times held are not proper to be given in charge to the jury, though the giving of such instructions would not involve reversible error.— Hawes v. State, 88 Ala. 39; Rains v. State, Ib. 91; Riley v. State, Ib. 193; Carrington v. L. & N. R. R. Co., Ib. 472.

We find no error in the record, and the judgment of the Circuit Court is affirmed.