Rigsby v. State , 152 Ala. 9 ( 1907 )

DOWDELL, J.

The defendant was indicted under the name of “Neal Rigsby, alias Neal Rigby.” In the copy of the indictment served on him before entering upon the trial his name was stated as “Neal Rigby, alias Neal Rigby.” The defendant objected to being put upon his trial for the alleged reason that he had not been served with a true copy of the indictment against him one entire day before the day if his trial. The point made is that in the original indictment his name is stated to be “Neal Rigsby, alias Neal Rigby”; the difference between the original and the copy being that in the copy the letter “s” is omitted from the name “Rigsby.” We need not determine whether the names “Rigsby” and “Rigby” are idem souans; hut on this question we would call attention to the case of Caldwell v. State, 146 Ala. 141, 41 South. 43. It clearly appears from the record, and we are satisfied, that no injury resulted to the defendant from the action of the court in overruling the objection of the defendant in being put upon his trial on this ground. In section 4333 of the Code of 1896 it is provided that “the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant.” We are not to he understood as saying that there was error, but only that, if there was error, no injury resulted. The above provision was not contained in the statute at the time of the decision of the case of Nutt v. State, 63 Ala. 180.

The defendant was jointly indicted with three others, namely, John Rigsby, Allen Rigsby, and Jack Short. On motion of the defendant a severance was ordered, and the defendant was separately tried. The theory of the state was that the killing was the result of a conspiracy entered into for that purpose by the three defendants named in the indictment, and there was evidence to support this theory. The proof of a conspiracy oftentimes, from the very nature of things, is dependent upon circumstantial evidence, and in the establishment of the conspiracy by circumstantial evidence a wide latitude sometimes becomes necessary in the introdction of the evidence as to the circumstances tending to show a conspiracy; circumstances which, when taken separately, may appear, indeed, very slight, but, when grouped together, become very strong and convincing. A circumstance, when taken separately, may seem irrelevant; but, when taken in connection with some other circumstance, its relevancy becomes apparent.

In the case before us many objections were made and exceptions reserved in the introduction of the evidence. It would serve no good purpose to review separately each of these exceptions. It is sufficient to say we have carefully considered each and all of them, and we fail to see that any error was committed by the court in its rulings on objections to the evidence.

The oral charge of the court to the jury is set out in extenso. Two exceptions were reserved by the defendan t to the oral charge. Both of these exceptions were gen-ral. The particular language of the court’s charge supposed to be objectionable was not pointed out in the exception. — Kirby v. State, 89 Ala. 68, 8 South. 110. Bonner v. State, 107 Ala. 97, 18 South. 226.

Charge 2, requested by the defendant, was argumentative, and, if for no other reason, was properly refused. There was evidence from which the jury were authorized to find the existence of a conspiracy to take the life of the deceased, and in which conspiracy the defendant participated. If the defendant was a co-conspirator, he was equally guilty, whether he was present or not at the time and place of the commission of the crime.

Charge 5 ignored the evidence as to a conspiracy, and was, therefore, properly refused. Charges 6, 12, 13 and 16 were for the same reason properly refused. — Cowan-v. State, 136 Ala. 101, 34 South. 193.

Charge 9 has been so frequently condemned by this court that it is unnecessary to cite cases.

Charge 15 ivas properly refused as being misleading. It had the tendency to mislead the jury to believe that a higher degree of proof is required than that to satisfy belief beyond a reasonable doubt. Moreover,. a conviction is not dependent upon or confined to the testimony introduced by the state. A conviction may, and sometimes does, follow from testimony introduced by the defense.

Charge 20 finds a substantial duplicate in charge 19, given for the defendant.

Charge 21 was argumentative, and properly refused. —Bohlman v. State, 135 Ala. 45, 33 South. 44; Oakley v. State, 135 Ala. 29, 33 Southfl 693.

There was evidence from which the jury were authorized to find the existence of a conspiracy, and consequently charge 22 was properly refused.

Charge 23 was the general affirmative charge, and, as there was sufficient evidence upon which the jury were authorized to find the defendant guilty, it was therefore properly refused.

Charge 26 was involved and calculated to mislead. It had a tendency to confuse and mislead as to whether the reasonable doubt necessary to acquittal should be one of the defendant’s gfiilt or of the truth of the evidence when there is a conflict in the evidence.

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.