Milner v. StateMilner v. State
- Reporters:
- , ,
- Before:
- Samford, Bricken
It was in evidence that defendant was seen at the dead body of Berry Brown on the morning of February 5th, with a single-barrel shotgun. It was therefore relevant to prove that at about 6 o‘clock on that day he returned a single-barrel shotgun to the party who owned it, being a circumstance tending to prove that he had a single-barrel shotgun in his possession. The explanation as to when he came into possession of the shotgun was defensive matter to be considered by the jury.
Testimony tending to prove that Berry Brown had, in December before the homicide, borrowed a worm for a whisky still from defendant, that defendant had tried to get it back and failed, and that he was hunting for it, was a circumstance, however slight it may be, tending to prove a motive for the killing and as such was admissible. Overstreet v. State, 46 Ala. 30.
The vice of refused charges “d” and “e” lie in the fact that they instruct the jury that the testimony of Judge Lindsay, a witness for the defense, is true and that that of James Lindsay and Morris Chaney is false. This is invasive of the province of the jury.
Refused charge 3 pretermits a consideration of the evidence, and for that reason is bad.
Refused charge 21 was covered by the general charge and by written charges.
Refused charge 28 was abstract; there was no evidence tending to prove that either James Turner or Morris Chaney were accomplices.
It is always relevant to prove flight on the part of the defendant after the commission of a crime. In doing this, the fact of leaving the community, the circumstances under which he left, where he went to, whether he left secretly or openly, are relevant. It then becomes a question for the jury to say whether the leaving was in fact a flight due to a consciousness of guilt or the exercise of a right to which he is legally entitled.
The foregoing covers the specific objections and insistences of error in appellant‘s brief, in addition to which we have examined the various rulings of the trial court on the admission of evidence and the refusal of written charges, all of which we find free from prejudicial error.
The facts tending to connect this defendant with the crime are entirely circumstantial, and present a question for the jury.
We find no prejudicial error in the record, and the judgment is affirmed.
Affirmed.
Jas. W. Strother, of Dadeville, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
SAMFORD, J.
The evidence in this case is in conflict. The question of guilt was for the jury, and therefore the general charge was properly refused.
Refused charge 3 omits a consideration of evidence tending to prove a participation in the possession of the still. The visit of defendant to the still at the time of the raid may have been for the purpose of obtaining whisky for a sick child, and yet the defendant may have owned and been in possession of the still either as joint owner or individually. Therefore, the hypothesis stated in the charge does not predicate an acquittal upon a fact inconsistent with defendant‘s guilt. In all of those decisions where charges of this character have been held good, the facts hypothesized were inconsistent with defendant‘s guilt, coupled with a consideration
Refused charge 4 is elliptical, and for that reason was properly refused.
No brief was filed in the case on the original submission, but we have examined the various rulings of the court on the admission of testimony and find no prejudicial error.
Let the judgment be affirmed.
Affirmed.
On Rehearing.
Since the case of Edwards v. State, 205 Ala. 160, 87 So. 179, it has been uniformly held that charges similar to refused charge 1 are bad, in that the required finding is not predicated on the evidence.
The original opinion is amended, the opinion is extended, and the application is overruled.
BRICKEN, P. J. (dissenting).
Charge 3, refused to defendant, is as follows: “I charge you gentlemen of the jury that if you believe from the evidence that the defendant was at the still for the purpose of obtaining whisky for his sick child, and for no other purpose, and from this belief taken, and considered with all the evidence in the case, you have a reasonable doubt of the guilt of the defendant, then you should find him not guilty.”
I think the refusal of the foregoing charge was prejudicial error. The charge is not abstract, nor was it in repetition of any instruction already given by the court, orally or otherwise. The charge, as will be noted, is predicated upon a consideration of all the evidence, and certainly it is the law if the jury upon considering all the evidence have a reasonable doubt about the defendant‘s guilt, arising out of any part of the evidence, they should find the defendant not guilty; for a jury may not convict in any case, if they entertain a reasonable doubt of the guilt of the accused where such reasonable doubt is engendered from the evidence, be it the whole evidence, or any part thereof, where the whole evidence has been considered. In other words, if the jury entertain a reasonable
Without further discussion I do not accord to the conclusion of the majority of this court in overruling the application for rehearing. In my opinion it should be granted, and the cause should be reversed and remanded, as ably contended by counsel in behalf of appellant.
Thos. E. Knight, Jr., Atty. Gen., for the State.
BRICKEN, P. J.
The indictment in this case contained two counts. Count 1 charged this appellant with the offense of distilling, etc., alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which was alcohol. Upon the trial, there was no evidence tending to support any of the allegations in this count 1; the court properly so held and instructed the jury accordingly by directing a verdict of not guilty as to this count.
Count 2 charged, in proper form and substance, the unlawful possession of a still, etc., to be used for the purpose of manufacturing or distilling prohibited liquors or beverages. As to this count, the undisputed evidence disclosed, pretermitting the question of possession, that the apparatus or appliance in question was not a complete still, that several component parts, necessary and essential to a complete still, were missing, and that it would have been impossible to make or distill whisky on the outfit found by the searching officers as testified to by them.
There was no evidence showing, or tending to show, that a complete still, etc., was found. The state relied for a conviction upon the evidence which tended to show the unexplained possession by defendant of a part or parts of a still above enumerated. There was, however, no evidence showing or tending to show, nor was there any attempt made to show, that the parts of the still al-