Walters v. State , 118 Ala. 654 ( 1897 )

The appellant was indicted, tried and convicted of arson in the second degree.

Tracks were found the morning after the burning of the gin house, going thence towards the house of Rose Taylor with whom defendant lived. A witness for the State ivas allowed, against the objection of the defendant, to ansAver the question, if the shoes of defendant fit the tracks found there, and to answer, that his shoes did fit the tracks. The shoes of defendant Avere produced, identified and introduced in evidence. The court holds that in this there was no error. The witness was stating a fact, and not a conclusion, which fact was competent to go to the jury on the question of identification, for them to determine whether the tracks found were the defendant’s or not — Hodge v. State, 97 Ala. 37; Riley v. State, 88 Ala. 37; Busby v. State, 77 Ala. 66.

In its general charge to the jury the court instructed them as follows: “A reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, that leaves the minds of the jury in that condition that they can not say they have an abiding conviction to a moral certainty of the truth of the charge.” The court, after reading this charge, explained to the jury what ivas meant by an abiding conviction to a moral certainty of the truth of the charge. To this explanation the defendants then and there duly excepted.

The court holds that this charge of the court is free from error, and that in as much as the explanation that the court gave of the term “an abiding conviction to a moral certainty of the truth of the charge,” is not set out in the bill of exceptions, no question is presented as to the explanation that should have been given. The judgment of conviction is affirmed.

Opinion by

Haralson, J.