Waters v. State , 117 Ala. 108 ( 1897 )

McOLELLAN,. J.

The action of the court in requiring the defendant to go to trial without putting the State to an admission of what the absent witness, Addis, would testify was matter of discretion; the exercise of which is not revisable.

It will suffice to say of defendant’s objections to the testimony of Holcomb as to the name of Dearman’s yearling that no grounds of objection were stated by the defendant.

It was obviously improper to go into the particulars of the charges upon which defendant had been previously convicted and to retry the issues concluded by the judgments in the former prosecutions as the defendant offered to do.

The circuit court committed no error upon which a reversal of the judgment could be predicated in limiting the argument of defendant’s counsel to two hours. — Yeldell v. State, 100 Ala. 26.

The indictment charged the defendant with the larceny of a cow, or animal of the cow kind. The evidence tended to show that defendant was present at the place where the animal was killed and dressed, and that it was he who killed it and dressed it. There was evidence from which the jury might have inferred that anothor person was also present and took the beef in his wagon and carried it a circuitous route into what was known as the Rocky Hollow road, where defendant claims to have purchased the beef he is charged with having stolen from another person. On these tendencies of the testimony the jury manifestly might have found defendant guilty of the larceny alleged, although they also believed that after the larceny by him was completed the beef was carried by another person into the Rocky Hollow road, and there received by the defendant. Charges 1 and 2 requested by the defendant were bad in that they did not exclude the idea — as certain other charges given at his request did — that he had previously to receiving the beef on that road feloniously taken and carried away the animal as averred in the indictment.

The court in other charges requested by defendant correctly stated the doctrine that a presumption of innocence attends a defendant until removed by proof of guilt. There was, therefore, no error in refusing charge 3, even if it be conceded that that instruction was abstractly correct. But that charge was not an accurate exposition of the doctrine. The presumption does not ’necessarily attend a defendant “throughout the whole trial,” but only until it is overturned by evidence which convinces the jury of guilt beyond a reasonable doubt.

The sale of beef by defendant to Huggins was not an ingredient of the offense charged, but merely an incriminatory circumstance. The defendant might have been guilty as charged though he did not sell the animal to Huggins.

Charge 5 was properly refused on the considerations adverted to in respect of charges 1 and 2.

Charge 6 was argumentative, and therefore properly refused.

Affirmed.