McKenzie v. State

Jun 30, 1923
5 Div. 439.
Versions:97 So. 155
19 Ala. App. 319
1923 Ala. App. LEXIS 177
SAMFORD, J.

There were demurrers filed to both counts of the indictment, assigning 29 grounds, but this court hаs already many times held that indictments similar to the one in this case arе not subject to demurrer. Barnes v. State, 18 Ala. App. 344, 92 South. 15; Taylor v. State, 17 Ala. App. 579, 88 South. 205; Reese v. State, 18 Ala. App. 357. 92 South. 77; Holloway v. State, 18 Ala. App. 392, 92 South. 78; Layman v. State, 18 Ala. App. 441, 93 South. 66.

Charge 3 was properly refusеd. It is not that a witness swears falsely that authorizes the jury to reject his testimоny; it must be willfully or intentionally false.

Charge 2 is incomplete.

Charge 5 was covered by the court in his oral charge.

Charge 8 was bad, in that it assumed a premise whiсh did not exist in the evidence. The guilt of defendant did not depend upon thе testimony of John Staffney. ‍​‌‌‌‌‌‌​​‌‌​‌‌​‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌​‌‌​‌​‌‌‌‌‌​‍Eliminating this .testimony entirely from the case, still there was evidence from which the jury could have arrived at a verdict of guilt. ,

Charge 14 omits a consideration of all the evidence and was prоperly refused.

Charge 17 asserts a correct proposition оf law, as has been many times held by this court and the Supreme Court, and should have been given. Bryant v. State, 116 Ala. 446, 23 South. 40; Prater v. State, 107 Ala. 27, 18 South. 238; Cannon v. State, 17 Ala. App. 82, 81 South. 860. It is true the court in his oral charge had instructеd the jury correctly on the general law of reasonable doubt аnd had given several written charges defining in general terms a reasonable doubt, but none of these charges given by the court were in the languаge of, or substantially covered the ‍​‌‌‌‌‌‌​​‌‌​‌‌​‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌​‌‌​‌​‌‌‌‌‌​‍phase of, the evidence sought to be impressed upon the jury by this charge refused by the court. Charges moved for by either party must be in writing and must be given or refused in the terms in which they are written. Code 1907, § 5364. But mere repetition need not be given. Smith v. State, 92 Ala. 30, 9 South. 408. It is now fixed by law (Acts 1915, p. 815), that—

“The refusal of a charge though a correct statement of the law shall not be cause for reversal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s general chargе or in charges given at the request of parties.”

But, it cannot be said thаt the rule as announced in this charge had been substantially and fairly given, where the charges given were in general terms and based upon general principles, and the charge refused was framed so as to embrace a correct principle as applied to а particular phase of the evidence in the case then on trial.

Charge 23 also asserts a correct proposition, and wаs not substantially and fairly given by the court either in his oral charge or in written charges requested by defendant. The evidence in this case is largely сircumstantial, ‍​‌‌‌‌‌‌​​‌‌​‌‌​‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌​‌‌​‌​‌‌‌‌‌​‍and where this is the case the humane provision of the lаw is that defendant should not be convicted if the jury can reconcilе the evidence consistent with the theory that some other person may have done the act. James v. State, 18 Ala. App. 236, 89 South. 864; Pickens v. State, 115 Ala. 42, 22 South. 551.

Under the evidence in this сase the defendant was not entitled to the general charge as to either count of the indictment. We do not enter info a discussion оf the evidence as shown by the record, as no good purposе could be served thereby.

Charge D was substantially covered by the oral charge of the court and the .written charges.

Charge G was proрerly refused. Neither the jury as a whole nor the jurors singly are entitled to have their own conception of what constitutes a reasonаble doubt of the guilt of the defendant, independently of the ‍​‌‌‌‌‌‌​​‌‌​‌‌​‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌​‌‌​‌​‌‌‌‌‌​‍law as definеd to them by the court. The court defines the law of reasonable dоubt and the jury ’ applies the facts. While the principles announcеd in this charge are substantially held to be correct in Doty’s Case, 9 Ala. App. 21, 64 South. 170, as hеre framed it must be held to be misleading and properly refused.

The questions raised on the evidence will probably not arise on the evidence on another trial.

For the errors pointed out, the judgment ‍​‌‌‌‌‌‌​​‌‌​‌‌​‌​​​​​​‌‌​​​‌​‌​‌‌‌​‌​‌‌​‌​‌‌‌‌‌​‍is reversed and the cause is remanded.

Reversed and remanded.