McDade v. State , 10 Ala. App. 241 ( 1914 )

PELHAM, J.

Charge No. 2 requested in writing by the defendant states correct propositions of law, is not covered by any given charge, and its refusal is error that must reverse the case. The charge is not subject to the criticism of argumentativeness made by the Attorney- General. It is in effect a statement that a juror’s mind must be led to a belief of the defendant’s guilt, not only by the measure of proof required in a civil case, but by that necessary in a criminal case from a consideration of the evidence. The form in which the charge is framed as applying to each of the jurors being satisfied beyond all reasonable doubt of the defendant’s guilt before a verdict of guilty would be justified under the law, is only a different way of stating that there can be no verdict of conviction or finding by the jury without unanimity, and has been approved as applied to both civil and criminal cases. — Hale v. State, 122 Ala. 85, 26 South. 236; Phillips v. State, 156 Ala. 140, 47 South. 247; B. R., L. & P. Co. v. Humphries, 171 Ala. 291, 54 South. 613.

The use of the word “promptly” in refused charge No. 5 renders it bad, and its refusal proper. — Way v. State, 155. Ala. 52, 46 South. 273.

Other refused charges are not insisted upon or discussed by appellant’s counsel in brief filed, nor do we think the refusal of any of them constitutes error.

The rulings on the evidence are free from reversible error; but Ave think it proper to state for the benefit of the court on another trial that it is our opinion that greater latitude should be permitted in the cross-examination of the witness Stougb for tbe purpose of testing his knowledge of such matters after he had stated his experience and given his opinion as to what caused the injury to the animal on his direct examination. The witness was giving his opinion- as an expert, or one having knowledge of such matters, and the court should permit all reasonable latitude to the cross-examination of such a witness for the purpose of testing the means and accuracy of his knowledge. — West Pralt Co. v. Andrews, 150 Ala. 368, 43 South. 348; Braham v. State, 143 Ala. 28, 38 South. 919; Council v. Mayhew, 172 Ala. 295, 55 South. 314.

For the error pointed out, the judgment of conviction is reversed.

Reversed and remanded.