Milner v. State

135 So. 599, 24 Ala. App. 350, 1931 Ala. App. LEXIS 2

Opinions

The evidence in this case is in conflict. The question of guilt was for the jury, and therefore the general charge was properly refused.

Refused charge 3 omits a consideration of evidence tending to prove a participation in the possession of the still. The visit of defendant to the still at the time of the raid may have been for the purpose of obtaining whisky for a sick child, and yet the defendant may have owned and been in possession of the still either as joint owner or individually. Therefore, the hypothesis stated in the charge does not predicate an acquittal upon a fact inconsistent with defendant's guilt. In all of those decisions where charges of this character have been held good, the facts hypothesized were inconsistent with defendant's guilt, coupled with a consideration of the entire evidence. 8 So. Digest Crim. Law 789 (18), and in Butler v. State, 16 Ala. 234,77 So. 72, 73, Bricken. P. J., said that: "A requested charge, 'If, after considering all the evidence in this case, the jury find there is one single fact proven to their satisfaction which is inconsistent with defendant's guilt, this is sufficient to raise a reasonable doubt of his guilt, and the jury must acquit,' was properly refused as misleading." Moreover, charge 3 contains the vice of singling out specific facts and giving undue prominence to them, which by the long list of decisions collated in 8 So. Digest Crim. Law 811 (1) may not be done. Watts v. State, 8 Ala. App. 264, 63 So. 18.

Refused charge 4 is elliptical, and for that reason was properly refused.

No brief was filed in the case on the original submission, but we have examined the various rulings of the court on the admission of testimony and find no prejudicial error.

Let the judgment be affirmed.

Affirmed.

On Rehearing. Since the case of Edwards v. State, 205 Ala. 160, 87 So. 179, it has been uniformly held that charges similar to refused charge 1 are bad, in that the required finding is not predicated on the evidence.

The original opinion is amended, the opinion is extended, and the application is overruled.