Mims v. State

141 Ala. 93 | Ala. | 1904

TYSON, -I.

We do not think the ruling of the court in sustaining objection to the question asked as to- the habits of the ox “in breaking into- and going in fields that were enclosed” was error. It calls for prima facie irrelevant evidence. It is only insisted that the evidence was material upon the question of his value. We are of the opinion that if such was his habit, that the jury wo-uld not have been authorized from this circumstance alone to have found that he was not as valuable if such had not been his habit.

The first written charge refused to- the defendant would unquestionably have been proper, if the word “reasonable” had not been employed before the word “probability.” Does the use of this word render it objectionable? We think not. “Probability is defined to be the state of being probable.” — Bain v. State, 74 Ala. 39. To say that a state of facts have a probable existence, ex vi termini, implies that there is reason for the belief that they exist. If there is no reason for such belief there is no probability of their existence. In order1 to find that there is a probability of the existence of a fact, a reason for believing in the existence of such fact must-be entertained. The employment of the word “reasonable” does not and can not affect the correctness of the charge. It is but a statement of what would have been implied from the word “probability” had it been used alone. The charge should have been given.

Charge 2 was properly refused. As hypothesized, the jury may have believed that Burke made statements in conflict with his testimony and, yet, not have discredited his testimony. They may have believed that he was swearing the truth notwithstanding their belief that he had made contradictory statements.

'The 3rd charge, of course1, should not have1: been given.

Reversed and remanded.