Little v. State

58 Ala. 265

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

MANNING, J.

The first of the assignments of error in this cause, relates to what purports to be a charge, number 2, which, though set forth on the first page of this record, is not contained in the bill of exceptions signed by the judge, and is not marked “refused,” or “given,” according to section 3109 of the Code of 1876. It, therefore, constitutes no part of the case, ought not to have been copied into the record, and affords no basis for an assignment of error.

We call attention to tbe fact, that section 3109, aboye referred to, concerning charges of tbe court to tbe jury, asked by either party in writing, makes it tbe duty of tbe judge not only to write “given” or “refused,” as tbe case may be, on such written charges, but also to “sign bis name thereto.” Such a charge'“thereby becomes a part of tbe record.” It does not become so unless it be signed by him. Nor can we then reverse for error therein, unless it be duly shown that an exception was taken.

Tbe writings, numbered as charges 4 and 5, to which other assignments of error refer, and which, also, are on the first page of the record' — though they have the word “refused” written on them — are not signed by the judge, and they can not, therefore, be accepted as properly before us for consideration. But the bill of exceptions shows that charges to the same effect were requested on behalf of defendant, and refused by the judge, to which refusals the defendant excepted. We shall, therefore, proceed to an examination of them.

By the first of these charges, the judge was asked to instruct the jury, that if defendant had proved a good character as a quiet and peaceable man, that fact may be sufficient to generate a doubt of his guilt, though otherwise they would have had none. This charge would have been abstract. There was no evidence of his good character before the jury. The attempt to prove it failed. And in Lanner v. The State, 54 Ala. 131, wre said: “While it is true that the law presumes every one to be innocent, until the contrary appears by evidence, it does not presume every one to have a good character. ... In the absence of all proof on the subject, his character is not to be taken as either good or bad, and the jury are not authorized, by assuming that it is one or the other, to let it have any weight in inclining them toward either his acquittal or his conviction. In such a case their verdict should be founded entirely on the evidence legally introduced, and not on any idea unsupported by direct testimony, concerning his general character.” The charge requested was, therefore, properly refused.

The other charge asked was also properly refused. Whether John Little, a brother of the defendant, was guilty of a crime for which he ought to have been arrested, or not, was wholly irrelevant to the inquiry whether Joseph Little was guilty or not of the offense for which he was prosecuted. The jury ought not to have been led to suppose, as they might have been, by the charge requested, that John Little’s conduct should, in any way, influence their verdict upon the indictment against Joseph Little.

We find no error in the record, and the judgment of the Circuit Court must be affirmed.