Gilmore v. State , 99 Ala. 154 ( 1892 )

HEAD, J.

The indictment, which is for burglary of a dwelling-house, contains the unnecessary averment that “goods or clothing, things of value,” were kept in the house for use, sale or deposit. This averment is clearly one descriptive of the house, and though unnecessary to be alleged, yet, being alleged, it became necessary for the State to prove it. There could be no conviction without such proof. Our adjudications are all one way on this point.—Lindsay v. State, 19 Ala. 560; Smith v. Causey, 28 Ala. 655; Johnson v. State, 35 Ala. 363, and later cases to same effect. .Under the evidence, the jury might have found that there was a bed and bureau in the house, kept for use, but there is no proof that they were of value. There being a total failure of proof of this averment, the defendant was entitled to the general affirmative charge which he requested.

The conversation had by defendant with Mrs. Moore, about a month before the alleged burglary, in reference to borrowing money, tended to show that defendant knew or believed there was money in house, and, therefore, tended to show motive for the alleged burglary. It was properly admitted in evidence.

The statement of the witness Everett, that he saw the defendant’s track, when made by him in Moore’s yard, on the morning after the alleged burglary, and measured it, and also measured the length and breadth of the tracks made the night before in the yard, and that they measured the same, was the statement of a collective fact, under our rulings, and admissible.

The inadmissibility of the fact proposed by defendant to be proved by the witnesses Joe and Laura Baxton, that one Allen Cooper had confessed to the commission of this crime, is so. palpable as not to require discussion.

We do not care to comment on charges i and 2 requested by defendant. Their subject-matter was not involved in, and had nothing to do with, the cause. The court was under no duty to instruct the jury on any such subject.

It is a well settled proposition,' that the innocence of the accused is presumed until his guilt is established by evidence, in all the material aspects of the case, beyond a reasonable doubt, and to a moral certainty; and it may also be stated that the evidence of guilt must be “strong and cogent,” and that unless it is so strong and cogent as to show the defendant’s guilt to a moral certainty he should be acquitted. These are the propositions of charges 3 and 6 requested by defendant, and they should have been given. Salm v. State, 89 Ala. 56. The record shows that the evidence against the accused was partly circumstantial, and these charges were not impaired by the assertion therein of that fact.

The 8th charge requested by defendant was purely an argument, and was properly refused.

The hypothesis of guilt, in order to justify conviction,' should flow naturally from, and be consistent with, all the facts proved in the cause; and charge 10, so declaring, ought to have been given The distinction must be kept in mind, however, between facts proved, and matters given in evidence-. There may be many matters testified to in a cause which are not facts proved. The latter are those which the jury find are established as facts upon a consideration and comparison of all the evidence. These are what the charge in question refers to as “facts proved.”

Charge 12 is inapt. A probability of the existence of a thing or condition means that there is more evidence in favor of such existence than against it. The term implies consideration of probative facts. In criminal accusations and trials, there are, to start with, no “probabilities’’ of innocence. There is a presumption of innocence, which is conclusive until it is overthrown by evidence. It is true, that after evidence of guilt has been introduced, a probability of innocence, or an overbalancing weight of evidence in favor of innocence, which is the same thing, may arise by the introduction, by the defendant, of countervailing proof; and before there should be a conviction,' this probability or weight of evidence should be removed by further evidence of guilt sufficient, with all the evidence in the case, to satisfy the minds of the jury of such guilt beyond a reasonable doubt; and it would not be improper to charge that, if such a probability has arisen, it must have been removed before there can be a conviction. Thus, adverting to charge 14 requested by defendant, it is not improper to instruct, as therein is -done, that there must be, as essential to conviction, an exclusion of every probability of innocence and every reasonable doubt of guilt. But, formulated as a general proposition, as in charge 12, “that in all criminal prosecutions, the evidence must be such as to exclude a rational probability of innocence,” is inapt, confusing and misleading. There are many charges of this nature found in the reports of our criminal trials, drawn, as in this case, without due consideration of the meaning and bearing of terms used, which, if sanction is given to them, tend to bring the law into confusion, rather than to make it certain. All such ought to be set aside, though technically they may assert correct legal propositions.

Charge 13, requested by defendant seems to come squarely up to the principle announced in Ex parte Acree, 63 Ala. 234, and should have been given.

Charge .14 ought to have been given. We do not construe it to mean that, if all the evidence in the case is sufficient to convict, there should be no conviction because a sufficiency of it was not introduced by the prosecutor. If the whole evidence establishes the guilt, whether introduced by the State or the defendant, then a sufficiency of proof has been furnished by the prosecutor, within the meaning of this charge.

We have carefully read the evidence, and do not think there is any tending to show that the breaking and entering were done with intent to commit rape. We do not know what may appear on another trial, on this point, but in the condition of the present record, charges 15 and 17 ought to have been given.

Charge 20 is disposed of,by what we have said in reference to those unnecessary averments of the indictment.

For the errors mentioned, the judgment is reversed, and the cause remanded.