Hale v. State , 122 Ala. 85 ( 1898 )

McCLELLAN, C. J.

— Charges 5 and 6, requested by defendant, are “not offensive to the rule against giving-undue prominence to particular parts of the evidence, but come within the exception to that rule as laid down in the cases of Harris v. State, 96 Ala. 24, and Smith v. State, 88 Ala. 73.” — Roberts v. State, Ante, p. 47; 25 So. Rep. 238, 241. The trial court erred in refusing them.

Beveral charges asked by defendant bearing a similh lude to charge 7 refused by the circuit court to this defendant have recently been brought under review in this court. Some of them have been held bad and others good, depending upon whether the particular ' charge under consideration asserted simply and only that the defendant should not be convicted so long as any one of the jurors had a reasonable doubt of his guilt. If it was clear to this intent, and did not tend to mislead the jury to an acquittal upon a reasonable doubt of one, or any number of the jurors less than the whole number, nor to inculcate the idea that the conclusion of each juror should be reached and adhered to “without the ajd of that consideration and deliberation with his felloAVS which the law intends shall take place in the jury room,” nor to render each juror the keeper of the consciences of his fellows, nor involve other misleading tendencies, the charge has been held to be good, and if it Avent beyond this it has been disapproved. — Carter et al. v. State, 103 Ala. 93; Goldsmith v. State, 105 Ala. 8; Pickens v. State, 115 Ala. 42; Cunningham v. State, 117 Ala. 59, 66; Lewis v. State, 120 Ala. 339. These cases shoAV the line of demarkation between good and bad charges of this general nature, and upon them it is clear that charge 7 refused to this defendant is of the former class, and should have been given.

Charge 8 should also have been given. It correctly states the law in respect of possession of stolen goods and the explanation offered of such possession, and declares that if the possession shown in this case has been explained to the reasonable satisfaction of the jury, and upon a fair consideration of all the evidence they have a reasonable donbt growing out of any part of the evidence as to defendant’s guilt, he should be acquitted. This instruction does not authorize acquittal on a reasonable doubt resting on a part of the evidence only,, but upon such doubt which may have been created by a part of the evidence, but remains after, a fair consideration of all the evidence, and thus rests upon the whole evidence. Charge 3 refused to the defendant is upon like considerations free from infirmity.

Charge 1 Avas bad because of its tendency to mislead the jurors to test the reasonableness of testimony solely by their OAvn experience and observation. They may have had no experience or opportunity for observation in respect of like situations and occurrences, or the facts deposed to may have been inconsistent Avith their own experience and observation, and yet they may have had information and knowledge of the ordinary experiences and observations of mankind in the premises Avith which the testimony might have comported.

Scheie McConnell occupying the building as a store, it Avas immaterial that it belonged to John L. McConnell. Charge 2 Avas, therefore, properly refused.

Charge 4 Avas bad. — Nicholson v. State, 117 Ala. 32.

The reasonable doubt hypothesized in charge 9 is alternative, i. e. Avhether defendant stole the goods, or Avhether he broke into the house. The charge Avould have required an acquittal of burglary upon a reasonable doubt of the actual stealing AAdien the jury might have had no doubt of the breaking and entry Avith intent to steal; and is therefore abstractly unsound.

For the errors pointed out the judgment must be reversed. The cause is remanded.

Reversed and remanded.