Norwood v. State

| Ala. | Nov 15, 1897

COLEMAN, J.

The defendant was convicted of the' offense of carrying a pistol concealed. The errors insisted on by counsel for appellant are based upon the refusal of the court to give charges numbered respectively six, thirteen, fourteen and fifteen. There were only two witnesses examined wiiose testimony was material — one for the prosecution, and the defendant for himself. The evidence showed ill will between the witness for the prosecution and the defendant. The sixth and thirteenth charges wrnre faulty, in that the principles of law asserted invaded the. province of the jury. The bias or ill will of a witness should always be considered by a jury in weighing 'his evidence, but it is not the province of the court to instruct the jury, that but little weight should be given to the veracity of a witness because of his ill will. The jury is made the sole judge of the weight of such testimony.

The fifteenth charge is also faulty. Although facts testified to and the manner of a witness may be such as to generate a reasonable doubt, it does not follow that it must or ought to produce such an effect. The charge was faulty in that it demanded an acquittal whether the jury in fact entertained a reasonable doubt of his guilt.

The fourteenth charge refused by the court is an exact copy of a charge held by this court to be good in the case of Newell v. The State, 109 Ala. 5" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/newell-v-state-6516400?utm_source=webapp" opinion_id="6516400">109 Ala. 5. Charges, however, must be construed with reference to the facts in the case. In the case of Newell, supra, the carrying of the pistol was admitted. The controverted question was whether it was concealed. State witnesses testified that they saw defendant and did not observe the pistol until the defendant came from behind a tree, authorizing the inference, that prior to that' time, the pistol must have been concealed. The defendant’s contention was, that the cylinder and handle of the pistol all the time were above the waistband of his pants and open to ordinary observation; that he merely went behind the tree to disengage it from his suspenders, and that the reason the pistol was not seen by the State’s witness was on account of their relative position to his body and t'he pistol. On this state of facts the defendant requested the court to instruct the' jury that if a witness says he did not see a thing, in determining how much weight should be given to such a statement, t'he jury should consider how much opportunity the witness had to see, in connection with all the evidence in the case. In the case at bar, the State’s witness testified that the defendant was standing at the door of the room talking to him, and as t'he defendant turned to walk away he sato the pistol in the hip pocket of defendant under his coat. The defendant testified that he did-not have a pistol on his person. To have applied the rule of evidence in the case at bar, declared to be correct in the Newell case, t'he charge should have been framed so as to assert that when “a witness says he saw a thing, in determining how much weight,” etc. Under the facts of the case at bar the charge, technically construed, was abstract, as no witness testified that he did not see the pistol.

Affirmed.