King v. State , 120 Ala. 329 ( 1898 )

McCLELLAN, C. J.

The indictment is in the Code form except in the substitution of the words, “a girl under the age of ten years” for the word “woman” used in the form ; and, as has been in substance held by this court, it sufficiently charges an offense under section 4346 of the Code.—Toulet v. State, 100 Ala. 72; Vasser v. State, 55 Ala. 264.

The bill of exceptions does not set out the charge given by the court of its own motion. "We are, therefore, in no position to adjudge that the definition given by the court of a reasonable doubt was not a legal definition of the same, nor that the charges given for defendant were hot in harmony with the charge of the court. It follows that we can not revise the court’s action in charging the jury at the request of the solicitor, .(1) “that the definition given by the court of a reasonable doubt is the legal definition of the same,” and (2) “that all the "charges given for the defendant are in harmony with the charge of the court, and they are not in conflict with, but only a different way of expressing the law.” The charges given for the State at the' most were explanatory' rather than qualifying in respect of defendant’s charges.— Lewis v. State, 96 Ala. 9—11.

The first charge refused to defendant requires too high a degree of proof ; it is every reasonable hypothesis but that of guilt which the evidence must exclude to justify a conviction.

The court is not only under no duty-to single out the 'testimony of one witness, or a particular statement of a witness, and tell the jury that they should consider it in favor of the defendant, but such an instruction has been often affirmatively condemned by this court as giving undue prominence and importance to the testimony so referred to. Charge 7 asked by the defendant was, therefore, properly refused.

Charge 5 asked by the defendant is not faulty for not postulating a reasonable reconciliation of the testimony consistent with innocence, as is insisted. A reconciliation of testimony necessarily implies and involves a reasonable reconciliation. But testimony so conflicting as to preclude satisfactoryr considerations upon which it may be made to comport with itself or to a stated conclusion can not be reconciled at all. And where the court sees this to be the case charges like this sho'uld not be given. The bill of exceptions does not purport to set out all the evidence. To the contrary it is therein stated that “there'was other testimony, both for the State and for the defendant, which is not deemed necessary to set out in full.” On this state of the record we will presume in support of the refusal of this instruction that the evidence not set out was of a character palpably irreconcilable with any theory of defendant’s innocence. Error in this ruling of the court is, therefore, not made to affirmatively appear, and appellant can take nothing by his exception to it.

Affirmed.