108 So. 84 | Ala. Ct. App. | 1926
We regard the evidence in this case sufficient to present a question for the determination of the jury. The affirmative charge requested by defendant was therefore properly refused.
There are numerous questions presented upon this appeal predicated upon exceptions to the rulings of the court upon the admission of evidence; also upon the refusal of several written charges requested by defendant. There were exceptions also reserved to several excerpts of the oral charge. The refusal of the special written charges by the court appears to be justified and without error, for in each instance where the law is properly stated in said charges the substance thereof was fairly and substantially covered by the oral charge and by the written charges given at the instance of the defendant.
An examination of the several rulings of the court upon the testimony, to which exceptions were reserved, convinces us that these exceptions are of no import and are without merit. In this connection we discover no error of a reversible nature in any of said rulings.
There is no escape, however, from a reversal of the judgment of conviction appealed from in this case because of the inapt and erroneous statement of the law in the court's oral charge relative to the defense of alibi wherein the court said:
"There is a rule of law, however, that, where a defense of an alibi is put in and fails, that is a strong circumstance against the defendant, and you are to consider that rule in connection with all the other rules of law in arriving at your verdict."
The appellant duly and legally reserved exception to this part of the oral charge of the court. In the case of Albritton v. State, 10 So. 426,
"An unsuccessful attempt to prove an alibi is always a circumstance of great weight against the prisoner."
We regard the term "strong circumstance against the defendant" and "a circumstance of great weight against the prisoner" as being of the same import. In the Albritton Case, supra, the Supreme Court held said charge reversible error. We must so hold in the instant case. The statement here complained *320 of was invasive of the province of the jury, for the jury are the sole judges of the weight and sufficiency of evidence submitted to them for their consideration, and it is error for the court to charge as to what constitutes "a strong circumstance," or that a given state of facts constitutes "a circumstance of great weight against the prisoner." The correct rule has been stated to be:
"Evidence to support an alibi should be weighed, considered by the jury just as other evidence and in connection with all the other evidence, and, if, upon consideration of the whole evidence, there is a reasonable doubt of defendant's guilt, he should be acquitted." Jones v. State, 58 So. 250,
In other words, if an accused sets up an alibi as a defense and fails in establishing it, the jury may take into consideration that circumstance as throwing light on the question of whether he is guilty or not. Threet v. State,
Reversed and remanded.
