Cogbill v. State

WALKER, P. J.

— There ivas evidence tending to prove the commission of the burglary alleged in the indictment during a night in May, 1911, and that when the fact was discovered on the following morning there was missing from the store of Anthony, which had been broken into, some cigars and 18 or 20 broken boxes of plug tobacco. These was also evidence tending to prove that late in the following night tbe appellant and one West, who was joined with him in the indictment, carried to the store of one Whatley and sold to him a lot of tobacco of the same kinds as that which Avas missed from Anthony’s store, and Avhich the next morning Avas found at Whatley’s store by tAvo policemen, Avho Avent there Avith a search Avarrant, and Avho delivered to Anthony some of the tobacco there found by them. Anthony testified that the tobacco Avhich Avas brought back to him by the policemen Avas in boxes Avith his (Anthony’s) name on them, and that he found at Whatley’s store some cigars Avith his (Anthony’s) name on them. Evidence of such circumstances afforded a basis for inferences that the tobacco, in the sale of AAdiich to What-lav the appellant participated, Avas the same, or a part of the same tobacco Avhich had disappeared from Anthony’s store, and that the appellant had a guilty connection Avith the burglary, though the tobacco was of brands commonly dealt in by merchants in that locality, and had upon it no marks to identify it as the property of - Anthony, and though there was no affirmative evidence that the boxes used by the policemen in returning the tobacco to Anthony were found.by them at Whatley’s store, or that the cigars with Anthony’s name on them, which were found by him at Whatley’s store, were sold to or received by the latter from the appellant. There is no merit in the contention that the evidence adduced had no tendency to prove the guilt of the appellant of the charge made against him.

The suit between Whatley and Anthony in regard to some of the tobacco which was found in the former’s store was a matter between parties having no legal connection with this case, and evidence as to the institution of that suit and the result of it was subject to the objections of the solicitor, Avhich the court sustained. The facts of the institution of that suit and the result of it were not binding upon or provable against the parties to this prosecution. It was res inter alios acta. The appellant had the benefit of more evidence in reference to that matter than he was entitled to.

In the course of the examination of H. T. Benton as a witness for the defendant, he was handed a paper, to the introduction of which at that time the state objected, and the court sustained the objection. The paper was a certificate of the witness, as judge of probate, for the admission of the defendant to the state hospital for insane persons. — Code, § 859. Upon the witness stating that he passed .on the application, the court permitted the paper to go to the jury “as proof in the case that the defendant was committed to the asylum.” No exception was reserved to this ruling. So it appears that the court admitted in evidence the paper which previously had been exciuded, and that no exception was reserved by the defendant to tbe action of the court in limiting the purpose for which that paper might be considered by the jury. • There is nothing in the record to indicate that it was claimed in behalf of the defendant that he was entitled to have that paper considered as evidence for any other purpose than that mentioned by the court in admitting it. If it was proposed to be claimed that the paper could be looked to' for any other purpose, such claim should have been made known to the court, and for the court’s ruling on it to be presented for review on appeal it was necessary that an exception be reserved. This was not done, and no ruling of the court in that connection is presented for review. Whatever harm there may. have been in excluding the paper when it was first offered was cured by the subsequent admission of it in a manner of which no complaint was made.

As applicable to the evidence in the case, which was such that the jury might properly have found from it that if the defendant had been insane at all his insanity was occasional only, and not chronic or permanent, charge 2 requested by him was misleading, if not affirmatively erroneous, as it is only insanity of a chronic or permanent nature which, on being proved, is presumed to continue; there being no presumption that fitful and exceptional attacks of insanity are continuous. — Ford v. State, 71, Ala. 385; 16 Am. & Eng. Ency. of Law (2d Ed.) 604. Besides, under the evidence in the case, if the jury found from it that the defendant had been insane, it Avas a question for them Avhetlier his unsoundness of mind Avas of the character required to constitute a defense to a criminal charge; and on such evidence the defendant was not entitled to have the jury instructed in general terms to the effect that if they found from the evidence beyond a reasonable doubt that the defendant was insane prior to the commission of the offense they must find that he was insane at that time, unless they found from the evidence beyond a reasonable doubt that prior to that time he had been restored to sanity. Such an instruction would have put upon the jury the duty of making a finding that the defendant was insane,whether or not his unsoundness of mind Avas found to be such' as to affect the question of his responsibility for the act Avith which he was criminally charged. The defendant Avas not entitled to an instruction to this effect. —Parsons v. State, 81 Ala. 577 2, South. 854, 60 Am. Rep. 193; Beasley v. State, 50 Ala. 149, 20 Am. Rep. 292. The court was not in error in refusing to give the charge mentioned.

We find no reversible error in the record.

Affirmed.