Yarbrough v. State, 105 Ala. 43

COLEMAN, F.

ri*i■ » defendant and one Hargrove were joint!- ■- , 1. There were two counts, one charging ai. > :b intent to murder, the other with intent to m ue defendant was tried alone, and .sentenced for ai assault with intent to murder.

In the caso of Hawes v. The State, 88 Ala. 37, it appears that after the twelve jurors were selected and sworn to try the case and before the indictment was read to them, G. B. Gordon, one of the jurors, was excused because of the sickness of his wife. After a full con-. sideration of all the authorities, it was held that the action of the court was justified by the necessities of the case, and his ruling was not available to the defendant. This authority is decisive of all the questions growing out of the empanelling of the jury, and the judgment of the court sustaining a demurrer to the ploa o! former acquittal .

In the case of Beavers v. The State, 103 Ala. 36, it was held that a witness might testify that he saw and recognized the defendant, after his arrest, as the same person whom he saw commit the offense. There was no error in applying the same rule to the case at bar. It was also competent to prove that the defendant was seen in the vicinity where the offense occurred on the morning after its commission. The testimony showed that the witness Cole, who was assaulted, had the defendant arrested several months after the assault had been made. This witness had testified that he knew and identified the defendant at the time of the assault. On his cross-examination he was asked, if he did not sue out the warrant a? day or two after he was told by one Polly Foster that she overheard the defendant and one Hargrove conspire to rob the witness Cole. The witness Polly Foster, after testifying in behalf of the State to the conspiracy, on • her cross-examination was asked, if the defendants did not have her arrested o'n a criminal charge; and one or two days afterwards, if she did not inform Mr. Cole of the alleged conspiracy of the defendants to rob him, and that, immediately thereafter, Mr. Cole instituted the prosecution against defendants. The evidence thus elicited on cross-examination by the defendant, was competent as tending to affect the credibility of the witness for the prosecution ; and the question is presented, whether it was competent, in rebuttal, to show that the witness Polly Foster had made the same statement to Cole and to others, before her ar’rest, as she made subsequent to it. We are of opinion that such evidence is competent. The distinction must be kept in mind, between such evidence and its purpose, and when a witness attempts to corroborate his own evidence, by proof of having made similar statements to others. The latter is inadnlissble. It is mere hearsay and not competent as tending to prove a fact; but when it is sought to discredit the witness, by attributing his or her testimony to some act on the part of the person testified against calculated to excite unfriendly feelings in the witness, in rebuttal of the inference to be drawn from such act, it may be shown that the witness made the same statement, prior to the time when the proven act occurred. This evidence could not be considered as original or corroborating evidence of the truth of the fact testified to, but purely in rebuttal of the inference, that the testimony was manufactured or the result of the unfriendly act.

The record is not very clear-as to the competency of all the witnesses to testify as to the soundness of mind of Polly Foster. In our opinion if there was any error, it was for the advantage of the defendant. In the case of Burney v. Torrey, 100 Ala. 157, it was said that sanity being the normal condition of mankind, a non-expert who had. enjoyed proper opportunities from a long and familiar acquaintance to form a correct judgment as to the mental condition of another was competent to testify that the person possessed a sane mind ; but that a non-expert was not competent to give an opinion as to the insanity of another without stating the facts and circumstances upon which he based his opinion.

There is nothing in the point that the defendant demanded that he be tried joinly with Hargrove who was jointly indicted. The facts showed that Hargrove had not been arrested at the time when the defendant was put upon his trial, and the demand for a joint trial was not made until the organization of che jury had been entered upon. We held also in the case of Woodley v. The State, 103 Ala. 23, the proper construction of the statute empowered each defendant to demand a severance, and nob a joint trial.

In regard to the question to be propounded to a witness examined as to character, not as affecting the fact of the gu'lt or innocence of a defendant, but the credibility of a witness who has testifier1, it is proper to en-quire as to his general character for truth and veracity, but the enquiry ^ «-><• iim i to general character for truth and veracity. It V (•>■.' oussible to show general bad character, and thai the p uby is not entitled to credibility because of his goi-er.., bad character, although it may not be notoriously o <,d for truth and veracity. This proposition rests upon the well recognized fact that the evidence of a person of notorious bad character is not entitled to the same weight, as one whose life and conduct commands the confidence of the public.—Ward v. The State, 28 Ala. 53; McInerny v. Irvin, 90 Ala. 275; Mitchell v. The State, 94 Ala. 68. The court ruled in accordance with these principles. There was no error in excluding text books as evidence.

The court did not err in receiving evidence of the good character of the witness many years preceding the trial, and when the witness whose character was attacked lived at Gadsden. We considered this question in the case of Jones v. The State, 104 Ala. 30.

Hargrove was not on trial, and the jury were not called on to determine his offense, or whether he was guilty of any offense, in order to arrive at a proper conclusion as to the guilt of the defendant.

The third charge requested for the defendant, asserts that “every single fact or charge against the defendant tending to prove his guilt should be clearly and satisfactorily proven, or else the defendant must be acquitted.” Although there may have been many facts tending to show his guilt not clearly and satisfactorily proven, yet there may have been sufficient other evidence to satisfy the jury beyond a reasonable doubt of the guilt of the defendant. This charge was properly refused.

The fourth charge requested exacts too high a measure of proof. It asserts that if “any uncertainty whatever exist,” the defendant should be acquitted.

The fifth charge is objectionable for the same reason. It may be that some of the inculpatory facts are capable of explanation, while others may not be. If there was inculpatory evidence, sufficient to satisfy the jury beyond a reasonable doubt of the guilt of the defendant which was incapable of reasonable explanation consistent with his innocence, it was the duty of the jury to convict notwithstanding some facts of a criminal char.acter may have been capable-of explanation consistent with his innocence.

The sixth charge is objectionable for several reasons. It asserts in effect that although the facts might show that the defendant was guilty of an assault with intent to rob, he must be acquitted if the jury should believe he was not guilty of an assault with intent to murder. If the predicate had been correct, the proper conclusion would have been an acquittal of an assault with intent to murder and not an acquittal generally. This charge was objectionable for the further reason that it was argumentative and misleading. The defendant may have-been in the store, and at one time his only intent may have been to frighten and rob, but it would not follow that the intent to murder did not succeed the first intent, and did not exist at the time the pistol was fired.

The seventh charge requested is confused and misleading. The use of the word “supposition” in a charge, of itself has a tendency to excite an imaginary or speculative enquiry, and is not permissible unless the context shows that it is a “'supposition” or hypothesis, reasonably arising from or suggested by the facts in evidence. Garrett v. The State, 97 Ala. 18; McGehee v. The State, 52 Ala. 224; Cohen v. The State, 50 Ala. 112. The first clause of the charge, to-wit, “A reasonable doubt is one that excludes every reasonable hypothesis except that of the guilt of the defendant,” no doubt asserts a proposition of law which should be given, but when this proposition is followed as a part of the same charge with the further statement “and only when no other supposition will reasonably account for all the conditions of the case can the conclusion of guilt be legitimately adopted,” the meaning becomes obscure. What is meant by “reasonably accounting for all the conditions of the case” is not plain nor readily understood. Charges should be expressed in plain simple language. The juries have been taught and are fully advised as to the degree of conviction of mind, necessary to constitute satisfaction beyond a reasonable doubt. The- courts ought to, and we have no doubt, when requested, always instruct the jury that before they can convict in a criminal case, the evidence must satisfy them beyond a reasonable doubt of the defendant’s guilt; and when this principle is couched in language that misleads and deceives the court itself, it must certainly be calculated to mislead and confuse the average juror. There can be no reversible error in refusing such charges.

The evidence in this case, as it appears in the record, is not so conclusive of the defendant’s guilt as to be entirely satisfactory, but we are confined to reviewing the rulings of the trial court, and in these we find no error. The weight and credibility of the evidence was for the jury.

Affirmed.

Case Details

Case Name: Yarbrough v. State

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1894

Citation: 105 Ala. 43

Court Abbreviation: Ala.