Newsum v. State , 10 Ala. App. 124 ( 1914 )

WALKER, P. J.

The indictment in this case was in the form prescribed by the Code for an indictment for forgery in the first degree (Code, § 7161, form 61), and it was not subject to the demurrer interposed to it.

The indictment was against the appellant, Walter Newsum, and Bennie Perkins, two negro hoys. The evidence on the tidal was not such as to forbid any conclusion other than that the latter was an accomplice in the crime, the commission of which there was evidence tend-, ing to prove. There was evidence to support the inference that he was not a guilty participant in the forgery, and that his only connection with the false check was that of an innocent messenger who, in ignorance of its-falsity, carried it to the bank for collection, pursuant to directions given to him by his codefendant. In this condition of the evidence, there was no impropriety in the action of the court in submitting to the jury the question of the Perkins boy, who was a witness for the state, having been an accomplice or not. The question was one of fact for the determination of the jury from all the circumstances, under proper instructions from the court as to the elements necessary to constitute one an accomplice. As undisputed evidence did not show that the defendant who was a witness against his codefendant was an accomplice of the latter, the court properly declined to decide, as a matter of law, that he was. —Childress v. State, 86 Ala. 77, 5 South. 775; 12 Cyc. 449.

The evidence in the case was such as to authorize the submission to the jury of the question of the appellant’s guilt or innocence, though they found that his codefendant, Perkins, who was the principal witness against him, was his accomplice. The testimony of the state’s witness Leggett tended to prove that the appellant, while Perkins was at the bank with the false check, was at the place near by at which Perkins stated he was when he sent the witness to the bank to get the money on the check; that he was on the alert in observing what was going on; and that, when he heard a statement by the person whose name was signed to the check as to some one being at the bank forging a check, his conduct and an exclamation he made indicated a knowledge of the transaction. These circumstances tended to prove the truth of material features of the narrative of Perkins, and so Avere corroborative of his testimony.— Malachi v. State, 89 Ala. 134, 8 South. 104; 2 Chamberlayne on Evidence, § 1597; Code, § 7897.

Several exceptions were reserved to rulings made on objections to testimony. We discover no reversible error in any of these rulings. The questions presented are not such as to call for discussion. The principal insistence in this .connection is that the court erred in admitting certain testimony as to handAvriting. Subsequently this testimony was plainly and unequivocally excluded from the consideration of the jury. ' The rulings complained of were rendered harmless by this action of the court.

The statement in the argument of the solicitor Avhich Avas objected to Avas a comment on the evidence in the case such as the court was not required to exclude. — • Green & Sons v. Lineville Drug Co., 167. Ala. 372, 52 South. 433.

What Avas said by the court to the jury in connection Avith the reading of Avritten charge 4, given at the instance of the defendant, did not at all qualify the proposition stated in that charge, but Avas a correct explanatory instruction which it was permissible for the court to give. — Galloway & Truitt v. Gay, 143 Ala. 524, 39 South. 277.

The appellant cannot complain of the court’s refusal to give written charge 5, requested by him, as the proposition stated in that charge was covered by written charge 4, given at his request.

The state did not, as was in effect asserted in charge 10, requested by the appellant, assume the burden of exculpating Bennie Perkins “from guilty participation in the uttering of the check.” It had the right to avail, itself of his testimony in the trial of his codefendant, whether he was the latter’s accomplice or not; the effect of the jury finding that he was an accomplice being that in that event a conviction of his codefendant would not be authorized unless his testimony was corroborated. The refusal to give this charge was not error.

There is no prejudicial error in the record.

Affirmed.