Smith v. StateSmith v. State
- Reporters:
- , ,
- Before:
- Samford
Thе defendant, together with two others, was found at a whisky still in full operation and when accosted by thе officers they ran. This defendant and Wallace were caught and carried back to the still, where there was a conversation betweеn Wallace and defendant. Defendant was сrying and Wallace told him there was not any need of that; that they were caught and that was all there was to it; and that a year and a day would settle it. Motion was made to exclude *446 this, the motiоn was overruled and defendant excepted. The arrest of defendant and Wallace was made in close proximity to the still and only a few moments elapsed between the arrest and the statement above and the still was then running. Everything said and done there-was a part of the res gestae and was admissible in evidence, if such statеment related, even remotely to the crimе charged.
The court in its general charge hаd instructed the jury that the burden was on the state to convince the jury by the evidence beyond a rеasonable doubt that the defendant was guilty before they would be justified in so finding, and had given several writtеn charges at the request of defendant to thе same effect and much more favorablе to defendant than requested and refused charge 21, and while the charge asserts a correct principle its refusal was without injury. Edwards v. State, 205 Ala. 160, 87 So. 179.
Refused charge 16 is fully covered by given charges 38, 28, 20, 8, аnd other given charges and in the oral chargе of the court.
Refused charge 7 presupposes that the entire evidence tending to connect the defendant with the offense is circumstantial, whereas there is some positive evidence tending to prove the state’s case. Under these conditions this charge is misleading.
Refused charge 22 was held to be good. Green v. State, 19 Ala. App. 239, 96 So. 651; Doty v. State, 9 Ala. App. 21, 64 So. 170; Bell v. State, 89 Miss. 810, 42 So. 542, 119 Am. St. Rep. 722, 11 Ann. Cas. 431; McHan v. State, 20 Ala. App. 117, 101 So. 81; Mitchell v. State, 129 Ala. 26, 17th headndte, 30 So. 348. Hоwever, the Supreme Court in Ex parte State еx rel. Attorney General, 213 Ala. 390, 104 So. 773, overrules all of the fоregoing cases on that point and holds the charge to •be bad. McKenzie v. State, 19 Ala. App. 319, 97 So. 155; Jones v. State, 20 Ala. App. 660, 104 So. 771.
Refused сharge 25 is materially different from charge 17 in McKеnzie v. State, 19 Ala. App. 319, 97 So. 155, and Price v. State, 20 Ala. App. 201, 101 So. 300. In the instant case others may havе been equally guilty, but this fact would not exclude defеndant. Judge Foster in the case of Hobdy v. State, 20 Ala. App. 44, 45, 100 So. 571, рoints out the distinction to be made when the charge should and should not be given. Tatum v. State, 20 Ala. App. 24, 100 So. 569.
The foregoing applies with equal force to refused charge 29. The evidence discloses others who may have been guilty, without affecting defendant’s status.
We find no prejudicial error and the judgment is affirmed.
Affirmed.