Opinion
7 Div. 667.
June 30, 1930.
Appeal from De Kalb County Court; E. M. Baker, Judge.
Baxter Gilbreath was convicted of petit larceny, and he appeals.
Affirmed.
See, also, ante, p. 33, 120 So. 304.
Defendant excepted to the following portions of the oral charge:
"We have a rule to law, gentleman of the jury, in cases of this kind which says that if stolen property is found in the recent possession of anybody and that if the person whose possession or in whose possession it is found cannot give a satisfactory explanation thereof, that may be a presumption of guilt which would justify the jury in finding him guilty without further testimony, the weight of such presumption being with you."
"If you find the defendant guilty, gentlemen of the jury, there are two verdicts which you may render. You may render a verdict of guilty leaving the matter of punishment with the court, or you may render a verdict of not guilty. If you find the defendant guilty you may assess a fine against him not exceeding $500.00. But in this case you do not have to assess a fine unless you desire to do so.
"You have your choice."
The following charges were refused to defendant:
"1. The court charges the jury that if a conviction in this case depends upon the testimony of a single witness; and if the jury have a reasonable doubt as to the truthfulness of the testimony of such witness, they cannot convict the defendant.
"2. The court charges the jury that if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit him.
"3. The court charges the jury that if, upon a consideration of all the evidence, the minds of the jury or any member of the jury is left in a state of reasonable doubt and uncertainty, by the evidence or any part of the evidence, of defendant's guilt, then you cannot convict the defendant."
"6. The court charges the jury that you are not authorized to find a verdict of guilty on the testimony of a single witness, if you have a reasonable doubt of the truth of his statements."
"8. The court charges the jury that if under all the evidence in this case the guilt of the defendant depends upon the testimony of Ezra Lee, and the jury believe from all the evidence that said Ezra Lee has wilfully sworn falsely as to any material part of his testimony, then the jury may disregard all of the testimony of said Ezra Lee, and find the defendant not guilty."
"11. The court charges the jury that proof of contradictory statements or declarations on a material point made by the witness Ezra Lee may be sufficient to raise a reasonable doubt in the minds of the jury as to the truth of the testimony of the witness Ezra Lee."
C. A. Wolfes, of Ft. Payne, for appellant.
Defendant's requested charges state correct propositions of law, and were erroneously refused. (2) Powell v. State, 20 Ala. App. 606, 104 So. 551; (3) Gilbert v. State, 20 Ala. App. 565, 104 So. 45; (6) Segars v. State, 86 Ala. 59, 5 So. 558; (8) Grant v. State (Ala. Sup.) 127 So. 514; (11) Brown v. State, 142 Ala. 287, 38 So. 268. The oral charge is erroneous. Gilbreath v. State, ante, p. 33, 120 So. 304.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter
The excerpt from the court's oral charge to which exception was reserved, when taken and considered with and in connection with the whole charge, is free from error. Gilbreath v. State, ante, p. 33, 120 So. 304.
The defendant reserved exceptions to two questions asked defendant by the state while he was being examined as a witness on cross-examination, to wit: "You beat Ezra Lee up for swearing against you in the other case?" and "You mean to swear you didn't beat him up for swearing against you?" Ezra Lee was a witness for the state who had testified for the state in two former trials of this case, and upon whose testimony the state's case largely depended. An effort by a defendant to suppress testimony against him is always relevant and admissible. Piano v. State, 161 Ala. 88, 49 So. 803; Maxey v. State, 76 Ark. 276, 88 S.W. 1009; Love v. State, 35 Tex. Cr. R. 27, 29 S.W. 790.
The fault with refused charges 1 and 8 lies in the fact that the conviction of this defendant was not entirely dependent upon the testimony of one witness. The charges are misleading. Baxley v. State, 18 Ala. App. 277, 90 So. 434; Love v. State, 218 Ala. 66, 117 So. 400.
Refused charge 2 is held to be bad in Powell v. State, 20 Ala. App. 606, 104 So. 551.
Refused charge 3 is held bad in Anderson v. State, 209 Ala. 489, 96 So. 636; Powell v. State, 20 Ala. App. 606, 104 So. 551.
Refused charges 4 and 5 are covered by the oral charge of the court and by written given charges.
Refused charge 6 is abstract.
Refused charge 7 is covered by given charge 1.
Refused charges 9 and 10 are covered by the court in its oral charge.
Refused charge 11 is bad. Brown v. State, 142 Ala. 287, 38 So. 268.
We find no prejudicial error in the record, and the judgment is affirmed.
Affirmed.