Shearer v. State
95 So. 329
Ala. Ct. App.
1923
Check Treatment

Applications for change of venue may, after final judgment, be reviewed and revised on appeal. Code 1907, § 7851. But, in reviewing the ruling of the court in refusing to grant a change of venue, the appellate court must give to the finding of the trial judge the benefit of every presumption of its correctness, and will not interfere where the evidence for and against is substantially conflicting. Horn v, State, 98 Ala. 23,13 So. 329; 4 Michie's Dig. 559, par. 756. In this case the evidence on the question of a change of venue was in conflict, and the verdict of the jury is not such as to impress this court that it was rendered in passion or prejudice.

Immediately after defendant had shot deceased, he and a man with him were running from the place of the homicide, and defendant said to the man with him: "I had nerve to do it." This being in close proximity to the shooting and so near to the scene, it may be affirmed as reasonably certain that the declaration was produced by and was instinctive from the occurrence to which it related, rather than the retrospective narrative of the occurrence. Such being the case, the declaration was a part of the res gestæ. Nelson v. State,130 Ala. 83, 30 So. 728; Holyfield v. State, 17 Ala. App. 162,82 So. 652; Newson v. State, 15 Ala. App. 43, 72 So. 579; Johnson v. State, 183 Ala. 79, 63 So. 163.

It is the law, and has been so held many times, that, if any member of the jury have a reasonable doubt of defendant's guilt, growing out of any part of the testimony on a consideration of all the evidence, the jury cannot convict the defendant; it being apparent that, so long as one juror remains unconvinced, there can never be a verdict of 12 jurors. 4 Michie's Dig. 426, par. 543 (2). But, whenever a requested charge goes further than to assert the legal proposition, and uses words of persuasion, such charge becomes an argument, and is properly refused. 4 Michie's Digest, p. 427, par. 543. The motion for new trial was properly overruled.

We find no error in the record, and the judgment is affirmed.

Affirmed.