Dungan v. State

Alabama Court of Appeals

Dungan v. State

57 So. 117, 2 Ala. App. 235, 1911 Ala. App. LEXIS 54

CourtAlabama Court of Appeals

DecidedDecember 21, 1911

StatusPublished

Cited by3 cases

This text of 57 So. 117 (Dungan v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dungan v. State, 57 So. 117, 2 Ala. App. 235, 1911 Ala. App. LEXIS 54 (Ala. Ct. App. 1911).

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Opinion

PELHAM, J.

Even had it been the duty of the court to pass upon the demurrers that Avere stricken, the defendant’s rights were not impaired, as the demurrers Avere not well taken and must have been overruled.

The statement of facts set forth in the affidavit are sufficient to apprise the defendant, and from which to determine certainly the offense charged. 'The affidavit charges the defendant with having spoken falsely and maliciously of affiant imputing to him the commission of the offense of perjury, a felony involving moral turpitude.—Code 1907, § 7340; Haley v. State, 63 Ala. 89. The statement in the affidavit “that the oath of said T. W. Walker had been impeached and was worth nothing-in the courts of Clarke county” is an assertion imputing false swearing, and presumptively imports the commission of the offense of perjury.—Code, § 3747. The evidence Avas sufficient to authorize a conviction, and there Avas no error in overruling the defendant’s motion to exclude the evidence and direct a verdict'.

Charge B referred to the jury a question of law, and was properly refused.—Tidwell v. State, 70 Ala. 33; Dotson v. State, 88 Ala. 208, 7 South. 259; Carr v. State, 104 Ala. 4, 16 South. 150; Whatley v. State, 144 [238]*238Ala. 68, 39 South. 1014; Land Co. v. Edmondson, 145 Ala. 557, 40 South. 505.

The charge is also faulty in not limiting the belief in the evidence to a belief “beyond a reasonable doubt.” The state is not required to prove, defendant’s guilt beyond all doubt, but only beyond a reasonable doubt.—Mills v. State, 148 Ala. 633, 42 South. 816.

The definition given by the court in its ora! charge of slander or defamation is correct.—I. A. Pub. Co. v. Crudup, 85 Ala. 519, 5 South. 332; Moody v. State, 94 Ala. 42, 10 South. 670; Ivy v. P. S. & L. Co., 113 Ala. 349, 21 South. 531; Wofford v. Meeks, 129 Ala. 349, 30 South. 625, 55 L. R. A. 214, 87 Am. St. Rep. 66.

No error prejudicial to defendant is shown by the record, and the case will be affirmed.

Affirmed.

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PELHAM, J.

Even had it been the duty of the court to pass upon the demurrers that Avere stricken, the defendant’s rights were not impaired, as the demurrers Avere not well taken and must have been overruled.

The statement of facts set forth in the affidavit are sufficient to apprise the defendant, and from which to determine certainly the offense charged. 'The affidavit charges the defendant with having spoken falsely and maliciously of affiant imputing to him the commission of the offense of perjury, a felony involving moral turpitude.—Code 1907, § 7340; Haley v. State, 63 Ala. 89. The statement in the affidavit “that the oath of said T. W. Walker had been impeached and was worth nothing-in the courts of Clarke county” is an assertion imputing false swearing, and presumptively imports the commission of the offense of perjury.—Code, § 3747. The evidence Avas sufficient to authorize a conviction, and there Avas no error in overruling the defendant’s motion to exclude the evidence and direct a verdict'.

Charge B referred to the jury a question of law, and was properly refused.—Tidwell v. State, 70 Ala. 33; Dotson v. State, 88 Ala. 208, 7 South. 259; Carr v. State, 104 Ala. 4, 16 South. 150; Whatley v. State, 144 [238]*238Ala. 68, 39 South. 1014; Land Co. v. Edmondson, 145 Ala. 557, 40 South. 505.

The charge is also faulty in not limiting the belief in the evidence to a belief “beyond a reasonable doubt.” The state is not required to prove, defendant’s guilt beyond all doubt, but only beyond a reasonable doubt.—Mills v. State, 148 Ala. 633, 42 South. 816.

The definition given by the court in its ora! charge of slander or defamation is correct.—I. A. Pub. Co. v. Crudup, 85 Ala. 519, 5 South. 332; Moody v. State, 94 Ala. 42, 10 South. 670; Ivy v. P. S. & L. Co., 113 Ala. 349, 21 South. 531; Wofford v. Meeks, 129 Ala. 349, 30 South. 625, 55 L. R. A. 214, 87 Am. St. Rep. 66.

No error prejudicial to defendant is shown by the record, and the case will be affirmed.

Affirmed.

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57 So. 117, 2 Ala. App. 235, 1911 Ala. App. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dungan-v-state-alactapp-1911.

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