Washington v. State , 58 Ala. 355 ( 1877 )

STONE, J.

Tbe objection to tbe juror did not fall within any of tbe grounds of challenge for cause, and, therefore, tbe court did not err in overruling it. — Code of 1876, §§ 4734, et seg.; 4881 et seq.

The objection to tbe description of tbe animal, alleged to have been stolen, as a bog, was not well taken. — Lavender v. The State, at tbe present term.

We do not think tbe court erred in refusing to pass on tbe sufficiency of tbe evidence to convict George Neal. There was some testimony tending to show be was a participant in tbe commission of tbe offense charged, and its sufficiency, under proper instructions, was a question for the jury. Whether be was an accomplice was one of tbe questions before tbe jury, and it would require a very strong case to justify tbe court in pronouncing criminating evidence unworthy of belief, and, on that account, to order tbe discharge of tbe prisoner against whom be bad testified. — Code, §§ 489A-5.

Tbe testimony of the appearance of tbe health is stated in so confused and uncertain a manner that we can not tell precisely what was tbe ruling of tbe court; and we decline to .consider it.

One piece of testimony we can not perceive tbe relevancy .of. It is that Alex. Baylor was permitted to testify, against tbe objection of defendant, “that Burrell and Wm. Christian bad come to his bouse Sunday before last, and called for Shep Clarke at bis bouse.” Shep Clarke bad given very important testimony against tbe prisoners, to the effect that be bad seen them with tbe stolen bog. He bad been asked if be bad not made different and contradictory statements to Burrell and "Win. Christian — denied it, and they had testified, contradicting him. The State then, in rebuttal, offered the testimony above copied. It is stated in the record that it contains ail the evidence, and what is recited above is all the record contains, tending in the remotest degree to show the materiality of the evidence objected to. If necessary we would reverse this cause on the admission of this evidence, in the condition of the present record. — 1 Brick. Dig. 505, relevancy and admissibility of evidence in criminal cases.

Possibly there is something, not shown, which proves its materiality, and on another trial it may be made to appear. There is nothing in this record to show it.

The first and fourth charges asked by the prisoners, and refused by the court, need some comment. The first would have been free from error, if it had contained a little more. To the words, “sufficient to raise a reasonable doubt in the minds of the jury,” something should have been added. Seasonable doubt of what ? Not necessarily of the guilt of the accused; for the other evidence in the cause might exclude all reasonable doubt of guilt. The charge should have contained a clause, somewhat to this effect: If the question of the guilt of the accused depends on the testimony of this witness ; or, to this effect: A reasonable doubt in the minds of the jury of the truth of this witness’ testimony. This charge was calculated to mislead, and was rightly refused.

Charge four had been substantially given in the general charge, but it asserted a correct legal proposition; and being asked in writing, and not abstract, it should have been given.

For the error pointed out above, the judgment of the Court of Quarter Sessions is reversed, and the cause remanded. Let the prisoners remain in custody until discharged by due bourse of law.