Carter v. State

33 Ala. 429

Opinion

STONE, J.—

That part of the charge which declares, “ that the evidence of a man who was asleep a part of the time, who contradicted the witness Glass on the question of the playing of the defendant, should have no weight with ” the jury, cannot be upheld. It was an invasion of the province of the jury, who are alone the judges of the credibility and weight of the evidence. This testimony may have been weak, but it was the defendant’s right to have it weighed by the jury.—Corley v. The State, 28 Ala. ; Brown v. Mayor of Mobile, 23 Ala. 722; Hair v. Little, 28 Ala. 236.

[2.] Another part of the charge is in the following language: “If Glass proved that the defendant did play one or two games at the jail, of the county of Bibb, within ■twelve months before the indictment was found, then he •was guilty.” This language is probably objectionable in •this, that it makes the guilt of the defendant depend on what Glass proved, when it should depend on fads to be found by the jury upon the whole evidence.

The judgment of the circuit court is reversed, and the -cause remanded.