Brown v. State , 118 Ala. 111 ( 1897 )

McCLELLAN, J.

The only exceptions reserved below went to the action of the court in refusing to give certain charges requested by the defendant. The refusal in each instance proceeded upon the idea, and was expressly based on the ground that the court had already in substance given, at the request of the defendant in writing the instruction under consideration. It, therefore, becomes necessary to set out the instructions so given and those refused, that it may be seen whether those refused were substantial repetitions of those given. Those given were the following: (1.) “Gentlemen of the jury, you have no right to capriciously reject the testimony of any witness.” (2.) “Gentlemen of the jury, if you have a reasonable doubt whether the defendant broke into the office of the Sheffield Coal, Iron and Steel Company in this case, you will find him not guilty.” (3.) “Before the jury should .convict the defendant, the hypothesis of his guilt should flow naturally from the facts proved and be consistent with all of them.” (4.) “If you believe that the defendant has reasonably accounted for his possession of the stolen checks in this case, you should find him not guilty.” And those refused were as follows: (5.) “Gentlemen of the jury, if the evidence has reasonably satisfied you that the defendant has accounted for his possession of the checks in evidence, you should find him not guilty.” (6.) “The jury must find the defendant not guilty, if the conduct of the defendant upon a reasonable hypothesis is consistent with his innocence.” (7.) “Before the jury can convict the defendant every member of the jury must be satisfied beyond a reasonable doubt of the guilt of the defendant.” (8.) “The burden is upon the State, and it is the duty of the State, to show beyond all reasonable doubt, and to the exclusion of every other reasonable hypothesis, every •circumstance necessary to show that the defendant is guilty; and unless the State has done that in this case, it is your duty, gentlemen of the jury, to render a verdict of not guilty.” (9.) “The only foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence beyond a reasonable doubt, and to a moral certainty, that the defendant is guilty as charged in the indictment to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt; and if the prosecution has failed to furnish such measure of proof, and to so impress the minds of the jury of his guilt, they should find him not guilty.” (10.) “Before the jury can convict the defendant they must be satisfied to a moral certainty not only that the proof is consistent with the guilt of the defendant, but that it is wholly inconsistent with every other rational conclusion; and unless the jury are so convinced by the evidence of the defendant’s guilt, that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, they must find the defendant not guilty.”

It is clear that • charge 5 refused is in substance the same as charge 4 given; and of course no error was committed in the refusal of the former. Charge 1 given for defendant is upon a matter not touched upon in any of the charges refused, and so on the present inquiry it may be left out of view. There remains only charges 2 and 3, given for defendant, to embody the propositions set forth in charges 6 to 10, inclusive, refused to defendant. An extended discussion of this matter would subserve no valuable end. It is not even necessary, we think, to point out the differences between the charges given and those refused. Differences do exist; substantial, material differences, which are apparent upon a comparison of the charges given with those refused as set out above; those refused are not substantially the same as those given; and the ruling of the court in its refusals to charge as requested cannot be sustained on the ground upon which it was based.

Abstractly considered charges 6 to 10, inclusive, were sound expositions of law. They were applicable to the case as presented by tlie evidence. They should have been given.

Reversed and remanded.