Moye v. State
67 So. 716
Ala. Ct. App.
1915
Check Treatment
PELHAM, P. J.

Charge No. 1 refused to the defendant is faulty in more than one respect. It predicates an acquittal of the defendant on the reasonable doubt of the guilt of another. It is misleading as applied to the evidence, in that the defendant could have been guilty *131of an offense within the terms of the indictment without haying been the person who alone actually took the money in the first instance. The proposition of a reasonable doubt of guilt authorizing an acquittal was fully covered by the numerous written charges given by the court at the instance of the defendant.

Charge 2 fails to negative the defendant’s guilty participation in the taking with Peoples. As correctly stated, the proposition is covered by given charge No. 11.

Charge 6 belongs to that class of argumentative charges often condemned.

There was ample evidence to submit to the jury the question of the defendant’s guilt of the crime charged against her, and the court was not in error in refusing the general charge requested in her behalf.

The statements in the nature of declarations against interest, or quasi confessions, made by the defendant in the presence of Peoples (who was connected ivith the transaction), as to which one stole the money, and the contradictions of Peoples in answer thereto in the same conversation, were admissible and properly received in evidence.—Poe v. State, 155 Ala. 31, 46 South. 521; Powell v. State, 5 Ala. App. 75, 80 59 South. 530. The mere fact that one is under arrest at the time an incriminating statement in the nature of a confession is made does not render it inadmissible.—Raymond v. State, 154 Ala. 1, 45 South. 895. The circumstances, conditions, and statements all show the quasi confessions to have been made voluntarily. Certainly, the contrary does not affirmatively appear from the record, and it is to be presumed on appeal that the trial court properly performed its duty in having proper predicate laid.—Whatley v. State, 144 Ala. 68, 39 South. 1014; Dupree v. State, 148 Ala. 620, 42 South. 1004.

*132There was one phase of the evidence tending to show that the defendant and Peoples were accomplices in the commission of the crime, and it was permissible to show that they went off together after the commission of the offense to Birmingham and remained together. The defendant voluntarily testified to all of these matters, and, if there was error in admitting evidence of her admissions, it was without prejudice.

The matter of allowing a nonexpert witness to express an opinion on the sanity of a person is largely in the discretion of the court.—Odom v. State, 172 Ala. 383, and authorities cited in the opinion at the top of page 385, 55 South. 820. No abuse of that discretion is shown by anything contained in the bill of exceptions. The witness Jones (a nonexpert) stated, in answer to a question propounded by the court, that he could not tell whether the attacks he had described the defendant as having were produced by drinking or some innate condition of the mind, as he had never seen her at any time when not drinking, and that he had never observed anything peculiar about her actions or words except what he thought was produced by drinking. The court properly refused to allow this witness to‘ express an opinion as to the sanity of the defendant in response to a question seeking to elicit such an opinion.

The defendant’s witness Waits, after preliminary questions by the court, Avas permitted to give his opinion as to the sanity of the defendant, and, if there was any error in at first refusing to allow this witness to give his opinion in answer to a question propounded by defendant’s counsel, it was cured by permitting him to subsequently testify on this point and express his opinion.

An examination of the transcript fails to show error requiring reversal, and the judgment of the trial court will be affirmed.

Affirmed.