Townsend v. State

Supreme Court of Alabama

Townsend v. State

137 Ala. 91

CourtSupreme Court of Alabama

DecidedNovember 15, 1902

StatusPublished

Cited by16 cases

This text of 137 Ala. 91 (Townsend v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Townsend v. State, 137 Ala. 91 (Ala. 1902).

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Opinion

TYSON, J.

It is true there is no conflict in the evidence as to the guilt of the defendant, but the credibility of the witnesses was matter for determination by the jury. It was, therefore, error for the court at the written request of the solicitor to instruct the jury that if they believe the evidence, that they must find the defendant guilty. This instruction, required his conviction though the jury may not have believed the evidence beyond a reasonable doubt. — Jackson v. The State, 106 Ala. 12; Carr v. The State, 104 Ala. 4; Shields v. The State, Ib. 35; Harris v. The State, 100 Ala. 129; Pierson v. The State, 99 Ala. 148; Heath v. The State, Ib. 179. A charge in exactly the same language as tliis one was held proper in Jones v. The State, 96 Ala. 56. But the court in considering it evidently overlooked the infirmity we have pointed out and 'which, in the later decisions cited above, was held to render it had and the giving of it to he1 reversible error.

The affidavit upon which this defendant was tried and convicted charged that he and nine other persons therein named played at a. game with cards or dice, or some device or substitute for cards or dice in a highway or some other public place.

■The evidence undisputedly showed that Ovo of the persons named did not play in the same game with this [93]*93defendant, but played in another game at the same place and at the same time. This fact clearly brings the case within the principle that was allowed to control in Elliott v. The State, 26 Ala. 78, and McGhee v. The State, 58 Ala. 360. Bee also Johnson v. The State, 44 Ala. 414; Cox v. The State, 76 Ala. 66; Lindsey v. The State, 48 Ala. 169.

This defendant and those playing in the game with him should have been proceeded against separate and apart from the others wlio played in a different game, or the prosecution should have been against each separately.

Reversed and remanded.

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TYSON, J.

It is true there is no conflict in the evidence as to the guilt of the defendant, but the credibility of the witnesses was matter for determination by the jury. It was, therefore, error for the court at the written request of the solicitor to instruct the jury that if they believe the evidence, that they must find the defendant guilty. This instruction, required his conviction though the jury may not have believed the evidence beyond a reasonable doubt. — Jackson v. The State, 106 Ala. 12; Carr v. The State, 104 Ala. 4; Shields v. The State, Ib. 35; Harris v. The State, 100 Ala. 129; Pierson v. The State, 99 Ala. 148; Heath v. The State, Ib. 179. A charge in exactly the same language as tliis one was held proper in Jones v. The State, 96 Ala. 56. But the court in considering it evidently overlooked the infirmity we have pointed out and 'which, in the later decisions cited above, was held to render it had and the giving of it to he1 reversible error.

The affidavit upon which this defendant was tried and convicted charged that he and nine other persons therein named played at a. game with cards or dice, or some device or substitute for cards or dice in a highway or some other public place.

■The evidence undisputedly showed that Ovo of the persons named did not play in the same game with this [93]*93defendant, but played in another game at the same place and at the same time. This fact clearly brings the case within the principle that was allowed to control in Elliott v. The State, 26 Ala. 78, and McGhee v. The State, 58 Ala. 360. Bee also Johnson v. The State, 44 Ala. 414; Cox v. The State, 76 Ala. 66; Lindsey v. The State, 48 Ala. 169.

This defendant and those playing in the game with him should have been proceeded against separate and apart from the others wlio played in a different game, or the prosecution should have been against each separately.

Reversed and remanded.

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Bluebook (online)

137 Ala. 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsend-v-state-ala-1902.

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