McAdory v. State

59 Ala. 92

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

Opinion

STONE, J. —

Evidence that the prisoner looked “ down - cast,” was but the opinion of the witness, and should not have been admitted. — Johnson v. The State, 17 Ala. 618, 625; Gassenheimer v. The State, 52 Ala. 313.

That part of the general charge which stated “ if defendant was within four hundred yards of where the gin-house was burned, and was advised of the burning, and did not go and aid others in saving property that might be saved from the fire, the jury might look to that fact as a circumstance, with the other evidence, tending to show his guilt,” is objectionable, in not referring to the alleged indisposition of the prisoner. There was testimony that prisoner complained of being sick. If the jury did not disbelieve this complaint of his, then it was a circumstance calculated to excuse him for not going to the fire. The truth or falsity of the excuse was a question for the jury ; and the charge we are commenting on is faulty, in withholding that feature of the evidence from the jury. The charge would have stood above criticism, if it had contained a clause similar to the following: “provided he was in such state of health as to show his presence and assistance would have been of service, without material injury to himself.” — Martin v. Hill, 42 Ala. 275; King v. Pope, 28 Ala. 600.

Charges on the subject of venue will not probably arise again in their present form, and we need not consider them.

The second charge asked predicates a fact, of which no evidence is found in the record. This constitutes it abstract. 1 Brick. Dig. 338, §§40, 41.

The third charge asked should have been given.

We find no other error in the record.

The judgment of the Circuit Court is reversed and the cause remanded. Let the prisioner remain in custody until discharged by due course of law.