Kidd v. State , 83 Ala. 58 ( 1887 )

SOMEBYILLE, J.

— 1. It is objected that, under the facts of this case, the City Court of Montgomery county had no jurisdiction of the offense charged, which is that of larceny. The reason assigned is, that the money alleged to be stolen was taken from the possession of the owner by defendants, if taken at all, outside of the county of Montgomery, and was only brought into the latter county. If these facts be true, under the provisions of section 4639 of Code of 1876, which is but an affirmation of the common-law rule on the subject, jurisdiction is in either county — the . one in which the felonious taking first occurred, or any county into which the thief may have carried the stolen property. Smith v. State, 55 Ala. 59; Code, 1876, § 4639.

2. The evidence tends to show that the taking was perpetrated under such circumstances as to constitute a robbery. But, as every robbery includes a larceny, the State could elect to prosecute for the minor offense, and the venue of this offense was in either county.

3. The second charge given at the request of the State, was unsustained by any evidence set out in the bill of exceptions, which purports to state all the evidence introduced on the trial. The record contains no evidence tending ,to show that the defendants themselves supported by their own testimony the defense of an alibi, as stated in the charge; nor that their brother testified in the case, as this instruction assumes to be true. This renders the charge erroneous, and must operate to reverse the judgment.

3. The last clause of the second charge requested by the defendants declares, in effect, that any doubt arising out of the evidence requires the jury to acquit. It is only a reasonable doubt of a defendant’s guilt which entitles him to. an acquittal — not a possible, speculative, or imaginary doubt, as implied by this charge, which for this reason was misleading. — Farrish v. State, 63 Ala. 164; Coleman v. State, 59 Ala. 52; Humbree v. State, 81 Ala. 67.

■ The other rulings of the court are free from error, the .remaining charges- requested by the defendants all being either misleading, or else objectionable as stating erroneous propositions of law.

The judgment is reversed, and the cause remanded. The defendants, in the mean while, will be retained in custody until, discharged by due process of law.