Towns v. State , 111 Ala. 1 ( 1895 )

BRICKELL, C. J.

1. Testimony having been intro-. duced tending to discredit the witness Jennie McClellan, it was competent to introduce evidence to support her general credit as a witness. — 1 Green. Ev., § 469; Lewis v. State, 35 Ala. 380 ; Hadjo v. Gooden, 13 Ala. 718. Such evidence having been introduced, and on the request of the defendant, the court having given specific instructions, that evidence of her conflicting statements in reference to material facts affected her credibility, it was very proper to instruct the jury that in weighing her testimony, they could consider the evidence of her good character for truth and veracity. The evidence would be'of little avail, if not useless, if the jury were not to consider it, in weighing her testimony.

2. In Prince v. State, 100 Ala, 146, the trial court had instructed the jury, “that the burden of proof is on the defendant to establish his alibi, and this must be done to your satisfaction.” Reviewing the instruction, this court said : “The proof exacted of the defendant in this charge to sustain the alibi, is too high, in that it omits the word ‘reasonable.’ If the jury were reasonably sat- . isfied from the evidence, that the defendant was elsewhere, and not at the place where the offense was committed, the burden cast upon him by the law is fully met.” Doubtless, it was this expression of opinion, which induced the trial court to give the - first instruction requested by the solicitor. But it should have been observed that the court proceeded further and said :

‘ ‘The defense of an alibi is as legitimate and effective as any other, and whenever the evidence introduced supports this defense, and its effect is to create a reasonable doubt in the minds of the jury of the defendant’s guilt, he is as much entitled to an acquittal, as if the reasonable doubt had been created or produced by any other legitimate evidence. We would not be understood as saying that the jury may disregard other evidence in the case, and consider only that in relation to the alibi. The whole evidence should be duly considered and weighed, and if after considering the whole evidence, the jury' have á reasonable doubt of the defendant’s guilt, arising out of any part of the evidence, they should acquit.” In Pelham v. State, 89 Ala. 28, the trial court had instructed the jury, ‘ ‘it is the duty of the defendant in proving an alibi, to reasonably satisfy the jury that he .was elsewhere at the time of the commission of the offense.” This court said : “We understand this charge to be simply, that the burden of proof as to an alibi, is upon the party who sets up that defense. If the defendant apprehended that the form of. the statement iended to mislead the jury, or that they might not understand that the words, ‘it is the duty of the defendant/ &c., merely imposed on him the onus probandi on this issue, he should have asked an explanatory instruction.”

The instruction we are considering, may be capable of the construction, that a defendant relying on an alibi, must prove it, as a party in a civil case must prove a fact on which he relies, by a preponderance of evidence, and unexplained, as it was explained in Prince v. State, supra, may have had a tendency to mislead the jury. As is very justly said’in People v. Fong Ah Sing, 64 Cal. 255 : “Proof of an alibi is, therefore, as much of a traverse of the crime charged as any other defense, and proof tending to establish it, though not clear, may nevertheless, with other facts of the case, raise doubt enough to produce an acquittal. A reasonable doubt of the defendant’s presence at the time and place necessary for the commission of the crime would seem necessarily to raise a reasonable doubt of his commission of it.” Instructions having a tendency to mislead the jury, as a general rule, (unless it is plain the jury have been misled, of which we are far from being satisfied in the present case), if injury from them is apprehended, must be cured by the request of explanatory instructions; they do not of themselves, create reversible error.

The several counts, though laying the ownership of the thing stolen in different persons, manifestly relate to a single burglary. A conviction upon either, required the same judgment and the same sentence as a conviction upon all; in such case, all that the law requires, is a general verdict. — Kilgore v. State., 74 Ala. 1.

The sixth section of the act of February 18th, 1895, entitled “An act to amend an act to establish a city court for the county of Talladega, approved Feb. 23rd, 1893,” (Pamph. Acts, 1894-95, pp. 1218-21), provides, “that the grand and petit juries for said city court shall be drawn, summoned and empanelled in the same manner as is, or may be hereafter, provided by law in respect to grand and petit juries iu the circuit court of Talladega county, and the said city court shall have the same power as the circuit court, to issue special venires and call in tales jurors,” &c. We regard it as settled by the cases, Childs v. State, 97 Ala. 49; Wolfe v. Underwood, Ib. 375, that there is nothing in this provision offensive to the constitution.

Let the judgment be affirmed.