Nichols v. State , 100 Ala. 23 ( 1893 )

McCLELLAN, J.

The inquiry being whether at a given time and place the defendant carried a pistol concealed about his person and there being' evidence tending to show that at such time and place he did carry a pistol concealed about his person, he offered to show that at another place in the vicinity, i. e. in the same town, during the same week or rather, “during that term of the court,” the defendant had a pistol which was not concealed. This testimony was properly excluded. The fact that the defendant “had a pistol,” it not appearing even that he had it “about his person” which was not concealed at one time and. place manifestly involves no tendency to show that he did not carry it concealed about his person at a different time and place. All that this testimony tended to prove was that the defendant had in his possession a pistol which may not have been on his person at all. And we are not prepared to say that the testimony would have been evidence even had it gone further and shown that at the time in question the defendant carried the pistol openly about his person, though it probably would have been competent had it identified the time as being just before or just after that to which the State’s evidence related, or had it tended to show defendant’s habit, covering the time, to carry a pistol openly on his person, tli > evidence for the State not being such as to wholly exclude the idea that the weapon was so carried at the time referred to by its witness. .

The court also properly excluded the proposed testimony of the defendant that “the pistol could have been seen by ordinary observation.” This was the mere opinion or conclusion of the witness from facts capable of being put before the jury, and from which it was their right and duty, unaided by the mental processes of the witness, to draw whatever conclusion was justified in the premises.

“A reasonable possibility” is, and in the nature of things can be, no more or less than a possibility; and a possibility of innocence does not require and will.not justify acquittal. The charge requested by the defendent was well refused. Sims v. State ante page 23.

There was a verdict of guilty, the assessment of a fine by the jury, and a recital of confession of judgment for fine and costs by defendant and sureties in this case, but there was no judgment of guilt. There was in other words, no judgment, from which an appeal would lie, in the court below. Ayers v. State, 71 Ala. 11. This appeal must therefore be dismissed.

Appeal dismissed.