Ott v. State, 49 So. 810

Ott v. State

49 So. 810 | Ala. | 1909

MAYFIELD, J.

W. P. Steele, being called as one of the special veniremen, to questions propounded to him by the court answered as follows: That he “would not convict on circumstantial evidence, unless it was the highest and strongest degree”; that he would not convict on circumstantial evidence ordinary in its character. It is not made to appear that the proposed juror would not convict on circumstantial evidence, or that he “thought a conviction should not be had on circumstantial evidence,” which is made a cause for challenge by section 7278 (5018) of the Code of 1907.lt is made to appear that he thought a conviction should not be had on circumstantial evidence, unless it was of the highest and *32strongest degree; that circumstantial evidence of ordinary character was not sufficient. This is exactly what the law requires that- a juror should do. When the evidence is circumstantial, it must be so complete, so strong, so cogent, as to show guilt to a moral certainty. It must exclude every other reasonable hypothesis than that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that one other than the defendant committed the crime for which he is on trial, he should be acquitted. — Gilmore v. State, 99 Ala. 154, 13 South. 536; Pickens’ Case, 115 Ala. 42, 22 South. 551; Salm's Case, 89 Ala. 56, 8 South. 66; Moorer’s Case, 44 Ala. 15; Brown’s Case, 108 Ala. 18, 18 South. 811; Ex parte Aeree, 63 Ala. 234. The court erred in alnwing the state to challenge such person for cause; the bill of exceptions reciting that he was otherwise qualified.

There was no error, in allowing evidence to dscribe the Avell in Avhich the body of deceased was found— “that a caved place in the well looked like some one had stepped their (his) foot in it.” It AAras the scene of the exime, and such evidence is admissible in the trial of criminal cases. — Watkins’ Case, 89 Ala. 82, 8 South. 134.

There was no error in declining to allow accused to prove flight of a third party soon after the crime. — Kemp’s Case, 89 Ala. 55, 7 South. 413; Owensby v. State, 82 Ala, 63, 2 South. 764.

We can see no objection to the evidence that deceased had a rising in her head at the time of the killing. It was competent, on the theory of suicide.

Evidence to show that one of the state’s witnesses agreed with counsel as to the justices of the peace who should hold the preliminary trial of accused, and that he afterwards tried to prevent some of them from presiding, may tend to show bias or prejudice of the witness *33against the accused, and at least tends to show his interest in the prosecution, and was therefore admissible for this purpose. — Salm’s Case, 89 Ala. 56, 8 South. 66; Amos’ Case, 96 Ala. 120, 11 South. 424; Copeland's Case, 86 Ala. 551, 6. South. 143, 4 L. R. A. 848; Walker’s Case, 85 Ala. 7, 4 South. 686, 7 Am. St. Rep. 17; Lodge’s Case, 122 Ala, 97, 26 South. 210, 82 Am. St. Rep. 23.

The trial court erred in instructing’ the jury that there was no evidence to show that the two negroes, Josh and Will Dickinson, had anything to do with the killing of deceased. It is true that the evidence did not prove them to be guilty; but there was some evidence from which the jury might- have inferred that they did have some cbnnectioh with the crime.

The judgment of the circuit court is reversed, and the cause is remanded.

Dowdell, C. J., and Simpson and Sayre, JJ., concur.