Gay v. State

Alabama Court of Appeals

Gay v. State

96 So. 646, 19 Ala. App. 238, 1923 Ala. App. LEXIS 109

CourtAlabama Court of Appeals

DecidedMay 15, 1923

Docket6 Div. 48.

StatusPublished

Cited by11 cases

This text of 96 So. 646 (Gay 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.

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Gay v. State, 96 So. 646, 19 Ala. App. 238, 1923 Ala. App. LEXIS 109 (Ala. Ct. App. 1923).

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Opinion

BRICKEN, P. J.

From a reading of the testimony in this ease there can be no ^oub,t that some one was unlawfully engaged in making, manufacturing, or distilling prohibited liquors, in the vicinity where defendant lived, but there is absolutely no evidence to connect this defendant therewith. He was entitled to the affirmative charge. Spelce v. State, 17 Ala. App. 401, 85 South. 835; Morris v. State, 18 Ala. App. 435, 92 South. 910; Clark v. State, 18 Ala. App. 217, 90 South. 16; Hammons v. State, 18 Ala. App. 470, 92 South. 914.

Reference to the cases cited supra discloses in each instance stronger facts for the state than in the instant case. Here such incriminating facts as were shown could have been applied to the sons of the accused, or to other persons, with as much propriety and reason as to this defendant, and under the oft-announced rule this conviction under the evidence cannot be permitted to stand; the rule being as follows, to wit:

“The humane provision of -the law is that there should not be a conviction upon the evidence, unless to a moral certainty it excludes-every other reasonable hypothesis than that of the guilt of the accused. No matter how-strong may be the facts, if they can be reconciled with the theory that some other person may have done the acts, then the guilt of the accused is not shown by that full measure of proof which the law requires.” Gilmore v. State, 99 Ala. 154, 13 South. 536; Ex parte-Acree, 63 Ala. 234.

At the most the facts disclosed by ¡the testimony could raise merely a suspicion, surmise, or conjecture that this defendant Avas the guilty party, and it is needless to reiterate that this is not sufficient upon whiejh to predicate a verdict or judgment of gruilt; nor. is it necessary to state that suspicion, surmises, or conjectures, without more/ have no place in a trial of an accused, whe¡re his life, liberty, or property is involved. <

Many questions are presented upo>n this appeal, but as the evidence as a j whole, *239 adduced upon this trial, is insufficient upon which to predicate the guilt of the accused, the reversal, of the judgment of conviction appealed from will rest upon the error of the court refusing the general affirmative charge requested in writing by defendant.

Reversed and remanded.

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BRICKEN, P. J.

From a reading of the testimony in this ease there can be no ^oub,t that some one was unlawfully engaged in making, manufacturing, or distilling prohibited liquors, in the vicinity where defendant lived, but there is absolutely no evidence to connect this defendant therewith. He was entitled to the affirmative charge. Spelce v. State, 17 Ala. App. 401, 85 South. 835; Morris v. State, 18 Ala. App. 435, 92 South. 910; Clark v. State, 18 Ala. App. 217, 90 South. 16; Hammons v. State, 18 Ala. App. 470, 92 South. 914.

Reference to the cases cited supra discloses in each instance stronger facts for the state than in the instant case. Here such incriminating facts as were shown could have been applied to the sons of the accused, or to other persons, with as much propriety and reason as to this defendant, and under the oft-announced rule this conviction under the evidence cannot be permitted to stand; the rule being as follows, to wit:

“The humane provision of -the law is that there should not be a conviction upon the evidence, unless to a moral certainty it excludes-every other reasonable hypothesis than that of the guilt of the accused. No matter how-strong may be the facts, if they can be reconciled with the theory that some other person may have done the acts, then the guilt of the accused is not shown by that full measure of proof which the law requires.” Gilmore v. State, 99 Ala. 154, 13 South. 536; Ex parte-Acree, 63 Ala. 234.

At the most the facts disclosed by ¡the testimony could raise merely a suspicion, surmise, or conjecture that this defendant Avas the guilty party, and it is needless to reiterate that this is not sufficient upon whiejh to predicate a verdict or judgment of gruilt; nor. is it necessary to state that suspicion, surmises, or conjectures, without more/ have no place in a trial of an accused, whe¡re his life, liberty, or property is involved. <

Many questions are presented upo>n this appeal, but as the evidence as a j whole, *239 adduced upon this trial, is insufficient upon which to predicate the guilt of the accused, the reversal, of the judgment of conviction appealed from will rest upon the error of the court refusing the general affirmative charge requested in writing by defendant.

Reversed and remanded.

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96 So. 646, 19 Ala. App. 238, 1923 Ala. App. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gay-v-state-alactapp-1923.

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