90 So. 52 | Ala. Ct. App. | 1921
The indictment contained four counts, which will be set out by the reporter.
Upon the request of the defendant in writing, the court gave the affirmative charge as to counts 1 and 2 of the indictment, and stated as the reasons therefore in his oral charge to the jury that —
"The defendant has asked what is known as the general charge on two counts in the indictment, and the court has given you those charges. That will eliminate from you the first two counts, the two counts on burglary. The court did that because the indictment alleges that the car was upon and connected with the Southern Railway Company. Now, in giving you those two charges the court is of the opinion that the proof shows that track there and the land that the trackage is on, or the title to it, is the Northern Alabama Railway Company, and that they are two different corporations; and the court gave you those charges, because in the opinion of the court the car was on the track of the Northern Alabama Railway Company instead of the Southern."
In the connection we think the action of the court and the reasons therefore were *223 correct and in point, for the reason that the allegations in the indictment as to the possession and ownership of the car was not met by the proof adduced upon the trial which is necessary.
For the same reasons, however, the affirmative charges as to counts 3 and 4 should have been given. These two counts contained the unnecessary averment that the larceny complained of was from a railroad car the property of the Southern Railway Company, a corporation. The alleged value of the stolen goods having been stated at $25 or more, the averment as to the particular place and the ownership thereof in which the alleged larceny was committed was unnecessary, but, having been so alleged, it must have been proven as alleged, and no such evidence was adduced upon this trial. To the contrary, the undisputed evidence in this case shows that the car from which the alleged larceny was committed was car No. 39226, and was the property of the Chicago Northwestern Railroad Company. It therefore affirmatively appears there was no evidence whatever to sustain the averment of ownership in the Southern Railway Company, either general or special, of the car in question, and, as the court properly held, the evidence failed to show the possession of same by the Southern Railway Company. As beilee of the alleged stolen property, the ownership thereof was properly laid in the Southern Railway Company, but, having assumed the burden by alleging in the indictment that the car from which the property is alleged to have been stolen was the property also of the Southern Railway Company, under the elementary rules of evidence it was necessary to offer proof to sustain such averment. Johnson v. State,
We are of the opinion, therefore, that the court erred in refusing to give charges 3 and 4 requested by defendant.
Charge 5 should also have been given, as it states a correct proposition of law. The mere fact that the defendant was accused of and arrested for the alleged offense, and the further fact that the grand jury found an indictment against him therefor, were not facts or circumstances to which the jury were allowed to look in considering the guilt or innocence of the defendant, nor was the accusation, arrest, or indictment circumstances in law or in fact showing or tending to show that the defendant was guilty of the offense charged. These things were merely the authorized procedure by which an accused may be put upon trial, and are in no sense facts or circumstances from which it may be judged that he is guilty. And the presumption of innocence, evidentiary in its nature, under all the rules of law, attends the accused throughout the trial and until the presumption is overcome by the evidence in the case, and until it is shown beyond a reasonable doubt and to a moral certainty that the presumption must fall and that the defendant is guilty. These are the propositions of law contained in refused charge 5, and are correct statements of the law, and the principle involved were not covered by the oral charge of the court or by the charges given at request of parties.
For the errors designated, the judgment of the lower court is reversed, and the cause remanded.
Reversed and remanded.
