*1
417
proof
satisfy
requires
'which the law
jury beyond
a reasonable doubt and
certainty,
to a moral
after a consideration
evidence,
of all
that the defendant
is
guilty.
firmly
It has been likewise
es
merely gives
tablished that evidence which
surmise, conjecture
suspicion
rise to a
ór
as
guilt
of defendant
will
suffice
judgment
sustain a
of conviction in
prosecution.
criminal
Guin v.
Ala.App.
788;
Digest,
94 So.
6 Alabama
Law, @^308, 560,
Criminal
561(1).
necessity
There
specifi
is
deal
cally with all of the insistences of error
error,
say,
here.
highly
Suffice
prejudicial
rights
to the substantial
of de
fendant, prevailed in the action
overruling
court
denying
and
defend
motion fоr
ant’s
new trial.
a
Said motion
Florence,
appel-
Parnell, of
for
Fred S.
predicated upon
is
separate
several
and
lant.
grounds,
distinct
each of which
well
taken, and the
granted
court should have
Atty. Gen.,
McQueen, Acting
N.
Wm.
Failing
the motion.
do so
necessitates a
Gen.,
Sykes,
Atty.
Asst.
Bernard F.
and
judgment
reversаl of the
of conviction
for the State.
appeal
from which this
ordered;
was taken.
sois
further,
judgment
is here
BRICKEN, Presiding Judge.
discharging
rendered
the defendant
from
judgment
appeal is
of con-
This
custody in
proceeding.
further
Robi
vagrancy.
viction
Ala.App.
son v.
certiorari denied
thoughtful and
con-
So. 629.
attentive
After
record, we are
of the entire
sideration
Reversed and rendered. Defendant dis-
opinion
said conviction
firm
charged.
there-
unjust and unwarranted. We
wrong,
impelled
reiterate what
feel
fore
many
this State
appellate courts of
one at
similar to the
cases
times
upon which
the evidence
bar as concerns
Upon
had.
conviction was
objections were inter-
innumerable
the trial
to the ad-
posed
exceptions reserved
-rulings
rulings
verse
court.
replete with error.
the court were
liams, appellant. Montgomery, for Jackson, Dothan, appel- Martin &
lee.
not,
you, not
the Court
instructs
RICE, Judge.
evidence for
take
purpose
consider that
court be-
Appellee had
pertains
than so far
other
brought
suit
appellant, in her
against
lоw
plaintiff
defendant
notice
Each count-—but
it.
against
counts
in four
disability.”
her claim of total
of action —claimed
same cause
all for the
the terms
by appellant under
her
a sum due
from the
excerpt
view of the
In
by it to her.
policy issued
of an insurance
quoted just next
charge
oral
of the cоurt
put it:
prius judge
above,
in the action of
we find
error
As the learned nisi
motion to
refusing
the court
Jones,
“Gentlemen,
plaintiff, Mrs.
complaint the
strike from
count of
sum of
certain
brings
recover a
her suit to
acknowledged
“that the defendant
words:
defendant,
the New
money against
*4
paid
years and
liability for
said four
the
she
Company, which
York
Insurance
Life
disability
pro-
plaintiff monthly
the
benefits
n insists that
for
entitled to recover
she is
the
policy
set
until
in said
above
out
vided
pro-
and
certain terms
and on account of
June,
day
1st
of
1940.”
policy
insurance
in a life
visions contained
properly
to
plaintiff
judge
The trial
thе
the
stated
by the
to
issued
defendant
testimony
jury
objection:
in this
by
without
the
the
disclosed
time
—and
appearing in
case,
policy
the date of the
testimony is
in
the
“The
conflict at
cer-
itself,
of a
policy
and on account
the
point
delivery
the
to Mrs.
of
issuance and
policy
effect
provision
that
tain
in
policy
of the
on. There is no
sued
Jones
dispute,
totally dis-
in
became
that
event she
the
conflict,
in
or the evidence is not
employment
any gainful
engage
to
in
abled
payment
with
past
of
reference
policy
life of the
occupation during the
or
policy
due
the
premiums оn the
if
her
pay
the
company
to
that
the
would
totally
finds that she
disabled because
was
during
per thousand
per
sum of
month
$10
policy
the
payment
itself waives
the
disability,
pol-
the
period
total
the
of her
was,
period
premiums if
during the
she
in this
icy,
by
testimony
the
as disclosed
suit,
disabled,
by
totally
I
covered
the
as
the
the face of
appearing from
case and
you.
disability
have
total
to
There
defined
$2000, making
sum of
policy, being for the
(dispute
is no
that the
defendant would
insists
per month which she
total
the sum
plaintiff
per
due the
the sum of
month
$20
under the
to recover
that she is entitled
suit,
period
by
during
pro-
the
covered
this
сase,
terms
under the
testimony in the
and
totally
vided
finds that she was
the
policy, the sum of
provisions
the
and
of
disabled,
disability
Ias
have defined total
per month.
$20
you,
period
by
during
to
the
this
covered
suit.
totally disabled
insists that she
“She
any occupation or work or
in
engage
you
to
to
you
main issue for
see the
“So
June,
of
employment during the months
case,
issue
it is an
of
and
this
determine
October, Novem-
September,
July, August,
with the
not concerned
fact. You are
1940,
December,
year
and
of
and
the
January,
ber
Mrs.
physical condition of
Jones
February,
of
during
months
the
the
covered
than
time
time other
August,
March,
May, June, July,
April,
1,
1,
suit,
is,
beginning
that
June
June
November,
October,
1941.”
and
September,
November,
through
1940,
each month
and
only
time
period of
about
the
That is
charged
judge likewise
prius
nisi
Said
concerned,
with reference
you
are
follows,
orally,
to-wit:
jury,
as
“There
the
Mrs.
That
physical condition
the
Jones.
in this
proof introduced
some
has bеen
in this case.”
main
is
issue
1940,
prior
June,
she
the effect that
Also,
and does not con-
to what does
as
notice to the de-
or furnished
gave notice
terms
disability” within the
“total
condition,
stitute
and on
physical
her
fendant
on,
judge
the trial
policy sued
paid
defendant
her
that
notice
that
trying the
as fol-
period charged
certain
months or a
during several
disability,
physical
“Total
as
lows,
disability
her
to-wit:
time, recognized
total
policy, does not
monthly
in the terms
payments of
used
$20
her the
paid
law,
law
Gentlemen,
under the rules of
testimony,
or
mean
That
per month.
helpless, in-
person was
pur-
that
you
for the
go
permitted to
incapacitated from
alone,
capacitated, physically
purpose
show
for the
pose,
helpless
condition.
anything,
doing
notice of her
did have
defendant
that,
it
mean that
but
does
not mean
they It
does
otherwise
condition
physical
to the ex-
physically
disabled
person
with reference to her
notified
had
substantially engage
cannot
you
she
disability,
.should tent
total
claim
Kimbrell,
occupation
Ry.
or San
any occupation,
gainful
Francisco
Co. or
capaci-
114,
qualified or
Ala.
which she is
So. 433.
work for
tated or trained or skilled
doing, that
We are not so sure that we undеrstand
disability,
she,
physical
her
On account of
duty
our
as
re
considering
able,
engage in
incapacitated to
or is
quested
charges,
other than the
any gainful employment which she
general
charge,
affirmative
which were re
skilled,
trained,
capacitated,
qualified,
below,
here,
where,
fused
аs
does
testi-
knew how to do. You have heard
mony along
appear
that the
contains
bill of
line,
did
what Mrs.
Jones
Court, by
all
the evidence. Our
physical-
became
before she insists that she
ly
which we
guided,
are
unabled,
things that she
different
Sec.
specifically
has
in such
stated that
testimony
did. You have heard
circumstances such
“not for
ability,
qualifications, her
reference to her
review.”
Garrett v.
you
training,
experience, and
have
her
her
24. And it has intimated as
her
testimony with
heard the
reference
much in at least one other case with which
by the testi-
physical disability
mony
disclosed
Liberty
Mealt. See
Nat. Life Ins. Co.
heard
in this case. You
also
al.,
v. Collier et
Reversed
SHIKLES
Court of 21, 1944.
March May 9,
Rehearing Denied