Randolph v. State , 100 Ala. 139 ( 1893 )

McOLELLAN, J.

William Randolph and Penny Eandolph were jointly indicted, tried and convicted of the offense of burglary of the store of one Cobb. The bill of exceptions recites that it contains substantially all uhe evidence in the case. It does not contain any evidence that the offense was committed in Wilcox coiinty. The defendant, William Eandolph, separately requested the court in writing to charge the jury “that they must acquit him if they believe the evidence.” The court erred in refusing this charge: One fact essential to guilt—the venue in Wilcox county—was not in evidence, and the effect of the court’s action was to hold that the case was made out, if the jury believed the evidence, though there was no proof and they might not have believed that the offense was committed in the county of the indictment.—Bain v. State, 61 Ala. 75; Cawthorn v. State, 63 Ala. 157; Brown v. State, ante p. 92.

This error, however, is not one of which the other defendant, Penny Eandolph, can complain. By the refusal of this charge to William Eandolph the' court did not pass upon the sufficiency of the evidence if believed to convict her; but at most so far as this point is concerned, it can only be said that it does not affirmatively appear that the judgment as to her is supported by the evidence, and this is no ground for a reversal: “It does not lie within our province to grant new trials, in cases civil or criminal, because the verdict and judgment may not affirmatively appear to be supported by the evidence.”—Hubbard v. State, 72 Ala. 164, 169-70.

But this question was raised in behalf of both defendants by a joint motion on their part made upon the close of the testimony for the prosecution, “to exclude all the evidence offered by the State and to discharge the defendants.” This motion should have been granted. The court’s denial of it was to rule in effect that there was evidence which, if believed by the jury, would authorize a conviction ; and this ruling was manifestly erroneous for that there was no evidence of the venue, and the error was equally prejudicial to each of. the defendants.

The other motion made jointly by the defendants on the express ground that the State had failed to adduce any evidence tending to connect them with the commission of the offense was properly overruled. The motion was made by both defendants and prayed the discharge of both. There was certainly evidence tending to connect Penny Eandolph with the offense in the facts that she had possession though at the time remote from the crime of some of the property carried away when the store was broken into and that she gave directly conflicting and therefore necessarily false accounts of the source of her possession; and whether there was any such evidence as to William Randolph or'not the motion was bad and the court properly overruled it, since, conceding that the latter was not implicated, the motion was good as to him and bad as to his co-defendant, and not being good as a whole as made it was well denied as a whole.

The court, moreover, is of the opinion (in which the writer does not concur) that the mere fact that some of the stolen property was found in the house of William Randolph thirteen months after the burglary in the possession of Penny Randolph who was his wife living in the house, William at the time being absent, confined in jail on another charge, it further appearing that on a search of the house made just prior to William’s arrest on this other charge none of the stolen property was found, was some evidence for the jury to consider in determining his guilt or innocence.—12 Amer. & Eng. Encyc. of Law, 845; White v. State, 72 Ala. 195; Malachi v. State, 89 Ala. 134.

In any view however the motion made here was well denied.

Reversed and remanded.