Salm v. State

89 Ala. 56

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

STONE, C. J.

The record recites that the prosecuting attorney was allowed to amend the indictment in this case, by striking out the second count. Technically, this ruling was wrong. It was competent for the solicitor, with the permission of the court, to enter a nolle-prosequi as to one or more of the counts; and the ruling made accomplished the same result. We will treat the ruling as a nol-pros., and, so treating it, we find no error in this ruling.

The house, or dwelling, charged in the first count to have been burned, is described in the indictment as being the property of Mrs. Echols. Hon. W. H. Simpson, the presiding judge of the City Court, being related to Mrs. Echols within the fourth degree of consanguinity, was incompetent to preside on the trial. — Code of 1886, § 647; Gill v. State, 61 Ala. 169. He, therefore, rightly declined to preside. We think, however, that he erred in making certain preliminary orders. We specially refer to the order setting a day for the trial, the order determining the number of special jurors to be drawn and summoned, and to the act of drawing the special jurors. These were not, in their nature, mere formal proceedings. Two of them were strictly judicial, functions, and the third one was confided to the presiding judge for very wise and obvious reasons. — State v. Castleberry, 23 Ala. 85; Heydenfeldt v. Townes, 27 Ala. 423; Wilson v. Wilson, 36 Ala. 655; Plowman v. Henderson, 59 Ala. 559; Gill v. State, 61 Ala. 169.

It is not our intention to pronounce definitively on the strength of the showing for a change of venue. The facts may not be the same when the case is again called for trial. Very strong reasons were set forth in the application, which were, to a considerable extent, negatived in the counter showing. We think, however, that a mere expression of opinion, that one accused of crime can, or can not, have a fair and impartial trial, is worthless as evidence, pro or con, unless it is supported by sufficient reasons, testified to as facts.—Seams v. State, 84 Ala. 410; Hawes v. State, 88 Ala. 37.

Nelson was one of the strongest, if not the strongest witness, against the defendant. After he had testified, and while Bice, another witness for the State, was being examined, he, Bice, testified that, after Salm was released from prison on bail, he went to the solicitor’s office with Nelson, and swore out the warrant against Salm (for gaming). The bill of exceptions then proceeds: “The defendant proposed to prove by this witness the interest Ben. Nelson had in the prosecution of the defendant, for the purpose of affecting his credibility, and asked the witness on cross-examination the following question: ‘Did not Ben. Nelson get you to make the affidavit against the defendant, charging him with gaming?’” On the objection of the State, the witness was not allowed to answer this question. We think the City Court erred in this ruling. Unfriendliness to a party against whom a witness testifies, is competent testimony on cross-examination. ' It does not necessarily discredit, but it is a circumstance the jurors are authorized to weigh in determining whether bias or ill-feeling does not, to some extent, color the testimony thus given in. — 1 Greenl Ev. § 450; Barnett v. State, 7 So. Rep. 414, at present term.

The general charge given by the court is, with a single qualification, exceptionally clear, accurate and impartial, and covers the whole field of controversy. We differ with the presiding judge in the opinion that there was any positive testimony of defendant’s guilt, within the rule which separates positive from circumstantial testimony. There was positive testimony of facts, including the conduct of the defendant, from which it was doubtless contended his guilt should be inferred, but it was not positive testimony of guilt. Charge 20 asked by defendant ought to have been given; for it clearly sets forth the proper measure of requisite proof to justify conviction of a criminal offense.

It was doubtless contended before the jury, that the defendant could have had no motive for burning the building and its contents. This was a legitimate line of argument, and, if true, was worthy of the jury’s consideration. It should have been weighed with the other evidence, in inquiring as to the defendant’s guilt. But it was only a circumstance to be weighed, and did not, as matter of law, raise the presumption of . innocence, or necessarily generate a reasonable doúbt of guilt. Its weight was not a principle of law to be eharged upon as such, but was only one of the data, if found to exist, from which the jury would and should draw their inferences.

The charges asked in reference to motive, or the absence of it, either invaded the province of the jury, by declaring that it had a specific legal effect, or they were objectionable on the ground that they sought to direct special attention to that phase of the proof, and thus to give, it undue prominence. Charges of the latter class we uniformly hold are mere arguments, and are properly refused on that account. We have decided this question so often we need not cite the authorities.

Reversed and remanded.