Ayers v. State , 71 Ala. 11 ( 1881 )

STONE, J.

The defendant asked the court in writing to charge the jury that “the testimony of the witness must be such as to establish the fact to a moral certainty, and beyond all reasonable doubt, that every allegation in the indictment is true.” Only one witness had given criminating evidence. The charge, as asked, asserted a legal truism, yet it should not have been given. This, if for no other reason, because the effect of it would have been to refer it to the jury to ascertain what were the allegations in the indictment. Average juries are poorly qualified to construe pleadings — particularly such pleadings as our Code prescribes. Many indictments under our system may and do contain charges and averments stated disjunctively. The indictment in the present case is one of that class. It charges that the thing bet was one of two classes — that the game played was with cards, dice, or some substitute for cards or dice, and that the game was played at either one or another of some eight named places. All these elemental ingredients of the offense are described either by name, or with few words, and the average non-professional mind would be incapable of comprehending their import. Hence it is, that the law does not authorize the reference to juries of the interpretation of writings. The charge was rightly refused. It is for the court to instruct the jury what/acis are necessary to be proved, and for them to find, to justify them in rendering a verdict of guilty.

We find no error in the various rulings of the Circuit Court on the admissibility of testimony.

The jury in this case rendered a verdict of guilty, and assessed the fine, but there was no judgment of the court pronounced on that verdict. Appeals lie, not from verdicts, but from judgments rendered. True, there was a judgment confessed for fine and costs, but the appeal is not from that judgment. Errors can not be assigned on confessed, judgments. If they could, the contention in the present case would be, not that there was error in finding Ayers guilty, but in rendering judgment against him and his sureties in the confessed judgment. There should have been a judgment of the court pronounced on the verdict of guilty, before there could be an appeal to this court.

There being no judgment of conviction in this case, the appeal must be dismissed.