89 Ala. 28 | Ala. | 1889
The appellant was convicted under an indictment charging him with the larceny of a watch and certain money from one Beynolds. The line of his defense appears to have been, that he won the watch and money from the prosecutor, at a game of cards. Against his objection, the State was allowed to prove by the foreman of a grand jury, that the defendant, having been summoned before that body as a witness in the investigation of another matter, was examined with respect to his knowledge as to gambling in the community, and had stated on this examination that he had played cards, on the night of the alleged larceny, with the said Beynolds, “and won his gold watch and-in money.” It is insisted for appellant, that the only instances in which a grand juror will be permitted to disclose evidence adduced before the grand jury, are those in which the disclosure may be required under section 4351 of the Code, for the purpose of ascertaining whether it is consistent with the testimony given by the witness before the court, or on a charge of perjury against him; and that, inasmuch as this was not a charge of perjury, and the defendant was not examined as a witness on this trial, the case does not fall within the statute, and the evidence of the grand juror was erroneously admitted. It would seem, on authority, that this contention is untenable, and that such testimony is competent for other purposes than those set forth in the section quoted from. — Thomp. & Merr. on Juries, § 706 (6); State v. Broughton, 7 Ired. (N. C.) 96; U. S. v. Porter, 2 Cranch, C. C. 60; U. S. v. Charles, Ib. 76.
2. Be that as it may, however, if this testimony was incompetent, it comes clearly within the principle settled in the case of Marks v. State, 86 Ala. 99, to the effect, that an erroneous ruling of the trial court, to which the defendant excepts, will not avail him on appeal, when this court can affirmatively determine that a ruling in line with defendant’s objection could only have been prejudicial to him. It appears in this record, as we have seen, that the defendant
3. There was no error in the charge given at the instance of the State, to the effect that “it is the duty of the defendant, in proving an alibi, to reasonably satisfy the jury that he was elsewhere at the time of the commission of the offense.” — Spencer v. State, 54 Ala. 124; 1 Amer. & Eng. Encyc. of Law, pp. 454, 455. We understand this charge to be simply, that the burden of proof as to an alibi is upon the party who set up that defense. If the. defendant apprehended that the form of the statement ■ tended to mislead the jury, in that they might not understand that the words “it is the duty of the defendant,” &c., merely imposed on him the onus probandi on this issue, he should have asked an explanatory instruction. — Smith v. State, 86 Ala. 28.
4. The general charge should never be given, when there is any evidence, however weak and inclusive it may be, tending to make a- case against the party who asks it. In this case, there was evidence tending directly to show defendant’s guilt; and the general charge requested by him was properly refused, notwithstanding the witnesses for the State were self-contradictory in the testimony given by them; and although the presiding judge may have believed that the evidence was not sufficient for conviction. That was a question entirely for the jury.- — Daniel v. Hardwick, 88 Ala. 557; Paden v. Bellinger, 87 Ala. 575; Beard v. Horton, 86 Ala. 202.
5. Each of the remaining charges requested by the defendant embodied mere arguments, proper, it may be, to be brought to the attention of the jury by counsel, but not proper to be given in charge by the court. Such charges, as has been many times decided by' this court, may always be refused.- — Hawes v. State, 88 Ala. 29; Rains v. State, Ib. 91; Riley v. State, Ib. 193; Carrington v. L. & N. R. R. Co., Ib. 472; Little v. State, at present term.
The judgment of the Circuit Court is affirmed.