Avery v. State

124 Ala. 20

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinions

SHARPE, J.

— The defendant was tried for an assault with intent to murder one Ingersoll by shooting him. The offense was committed in the dark and the main question of fact was as to the identity of the offender. A witness for the State was allowed to testify that just after the shooting he heard one Wallace say the defendant had shot Ingersoll, and that when Wallace said this he was about twenty or thirty feet from and near enough to be heard by the defendant. The conduct of one accused of crime in either admitting guilt or if the circumstances are such as to call for speech, in remaining silent when the charge is made, is ordinarily admissible evidence against him. The bill of exceptions does not purport to set out all the evidence and in the absence of evi-' dence as to what the defendant did or said when the accusation was made we cannot assume that the testimony was incompetent.

As to the propriety of charge 1 the decisions of this court are conflicting. In Ray v. State, 50 Ala. 104 it was said by the court that “every reason whether based on substantial grounds or not, does not constitute a reasonable doubt in law” and accordingly a charge embodying a definition of the term reasonable doubt as “a doubt for which a reason could be given,” was condemned as “calculated to confuse the jury.” This decision was referred to and approved in Peagler v. State, 110 Ala. 11; and in Roberts v. State, 25 So. Rep. 238, and again in Talbert v. State, Ib. 690 the refusal of charges asserting such definition was upheld for the stated reason that “a doubt for which a reason may be given is not necessarily a reasonable doubt although a reasonable doubt may be a doubt for -which a reason may be assigned.” According to common acceptation to give a reason for the existence of a mental condition is to state Avliy it exists, and in tliat sense a reason may he given for any degree of .doubt, and a reason is nevertheless a reason though it be based upon mere conjecture or on matters disconnected from the evidence and improper to be considered by the jury. Therefore Ave hold to the opinion that charge 1 Avas calculated to confuse and mislead the jury and that its refusal Avas not error. The decisions on this point in Cohen v. State, 50 Ala. 108, Hodge v. State, 97 Ala. 37, and Walker v. State, 23 So. Rep. 149 are overruled. The cases of Ellis v. State, 25 So. Rep. 1, and Jones v. State, Ib. 204 upholding the giving of similar charges, are not in conflict Avith this. The vice of such charges being only in their tendency to mislead, under the settled rule, neither the giving nor refusal of them is reversible error. (Haralson and Dowdell, J. J., dissenting.)

Charge 2 is subject to the same objections as charge 1.

There Avas no error in the part of the oral charge excepted to.

The judgment Avill be affirmed.