Bodine v. State

129 Ala. 106

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

DOWDELL, J.

The judgment entry recites that “after due deliberation it is 'considered by the court that the plea in abatement he and the same is hereby quashed, upon the inspection of the indictment and the plea by the court.’ We are unable to say, in the absence of the original paper (the indictment) which was before the trial court, and was inspected by the court, that any error was committed in quashing the plea of misnomer. In order to review this ruling, which was evidently based upon a finding of fact, the same evidence upon which the trial court acted should in a proper manner he presented to this court; that is by bill of exceptions, and if necessary by sending up under the rules the original papers.

The bill of exceptions states that for the purpose of impeaching one of defendant’s witnesses who had testified in the case the ¡átate was permitted to prove, “by one Dodd, a justice of the peace, that in 1892 he convicted such witness of the larceny of a hog and fined him five dollars in his justice court.” This evidence was admitted against defendant’s objection; and in the admission of it there was error. At the time of the conviction testified to, the larceny of a hog ivas by statute made a felony, and of said offense the justice of the peace had no jurisdiction; consequently there could have been no legal judgment of conviction. It is only in cases of conviction by a court of competent jurisdiction that evidence of such conviction, going to the competency of a witness, or to the credibility of his testimony, is admissible, under sections 1795, 1796 of the Code.

There was no error in excluding from the evidence the statement made by the defendant to one Dearman after the shooting occurred. This was no part of the res gestae, but simply a statement or declaration, in interest, by the defendant, which is not permissible to be given in evidence.

The only evidence of the cliai*actei' of tlie defendant was that of a quiet and peaceable man. This evidence bore on the question of guilt or innocence, and not upon the character of the defendant for veracity or the credibility / of his testimony.' There was no attempt at impeachment of the defendant, and consequently evidence of his character for veracity could not have been introduced by him. Charge 1 requested by the defendant was, therefore, properly refused, as being abstract, as well as argumentative. For the same reason charge No. 2 was faulty, and properly refused.

According to Avery v. The State, 124 Ala.20, charge No. 3 requested by the defendant was bad and properly refused. Charge 4 required an acquittal of the defendant, if the mind of the jury, after considering all the evidence in the case, 'should be left in a state of confusion as to any fact necessary to constitute the defendant’s guilt. No matter how slight the confusion anight be as to any fact, and although not such a state of confusion as would render it impossible for the jury to be satisfied of the defendant’s guilt beyond a reasonable doubt, the charge, nevertheless, required an acquittal. There was no error in its refusal.

Charge 5 is bad in assuming that the flight of the defendant proceeded from fear of violence from Fowler.

Charge 6 is' faulty in that it is argumentative, and also invades the province of the jury in instructing them as to what they should believe.

Charge 7 has a tendency to impress upon the mind of the jury a belief that in the opinion of the court the evidence tending to show defendant’s guilt was of a limited, if not of a doubtful, nature, and was, therefore, properly refused.

Charge numbered 8 was more or less involved and its tendency -was to confuse the minds of the jury and was, therefore, properly refused.

For the error pointed out the judgment of the circuit court must be reversed and the cause remanded.

Reversed and remanded.