Shepperd v. State, 94 Ala. 102

Shepperd v. State

94 Ala. 102 | Ala. | 1891

McCLELLAN, J.

— The evidence tended to show "that certain packages of seed, about five hundred in number, were-consigned at Philadelphia by Landreth to E. N. Cotlingham & Co., at Blocton, Ala.; that the car containing these packages arrived at Blocton, and was broken into before being unloaded; that the packages were missing, and packages corresponding-in number and description were subsequently found in the possession of the defendant. Yery clearly, we think, the jury were authorized to find upon this evidence that the defendant .had stolen the seeds as charged in the indictment, and the general charge requested by the defendant, the giving of' which would have denied them this right, was, of course, properly refused. — Kemp v. State, 89 Ala. 52, and authorities there cited.

In cases like the present one, where the guilt of the defendant is to be found, if at all, from criminating circumstances, alone, it is error to instruct the jury that they may not look to the fact that “there is no circumstance tending to show that any other person committed the crime, or has been charged with or suspected of the crime.” Charge 2 asked by the defendant was of this character, and hence was well refused. Childs v. State, 58 Ala. 349.

The fact that a juror '•feels a desire for more evidence''’ of *105criminality, is not necessarily the equivalent of a reasonable doubt of guilt in the mind of such juror. A juror might well ■“feel a desire” for more evidence, and naturally would experience such desire in all cases where he entertained any doubt whatever of guilt, whether that doubt were a reasonable one or not in itself; and manifestly a desire for further proof, resulting from a mere unreasoned misgiving, would not involve a state of mind on the part of the juror which would make it his duty to acquit. These considerations demonstrate the infirmity of the tnird charge requested by the defendant.

The fourth instruction asked for defendant is palpably a mere argument; and its refusal may be justified upon that ground. — Potter v. State, 92 Ala. 37; Chatham v. State, Ib. 47; Bancroft v. Otis, 91 Ala. 279; Little v. State, 89 Ala. 99.

We do not doubt that the trial court may, with propriety, recall the jury after they have retired, and give them an instruction which had been previously refused to the defendant. It would seem, indeed, that in any event the defendant could not complain of such action on the part of the court, as it is taken in consequence of his original request that the charge should be given, and, presumptively in all cases, and as matter of fact in this case, in his interest. — Marcus v. State, 89 Ala. 23. So that, if error was committed in recalling the jury and giving the previously refused charge, it was affirmatively beneficial to the defendant, and can not be availed of by him on appeal. — Marks v. State, 87 Ala. 99.

The court having properly recalled the jury, and given the charge at first refused to the defendant, its further action in that connection stands upon the same footing as if the charge had been originally given; in which case the defendant could not have complained because of any infirmity in the charge itself, since given at his instance, nor because of any explanatory charge given by the court, if such explanation were proper in itself; and th'at the explanatory oral instruction given by the court was proper, we do not doubt. — Barnard v. State, 88 Ala. 111.

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