Opinion
8 Div. 830.
March 19, 1929.
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
Robert Welden was convicted of burglary and he appeals. Reversed and remanded.
Charge C, refused to defendant, is as follows: "The court charges the jury, that in all criminal cases, under the law of our land, every man on trial has the right to offer his standing in the community before the jury, not for the purpose of disproving that he did not do a thing, or, that he did do a thing, but if he can show a good reputation, it is for the jury to look at that reputation in connection with all the rest of the evidence, to say whether or not a man of such standing would have done the thing he is charged with having done; and if, after considering all the testimony, the jury is of the opinion or have a reasonable doubt as to whether a man would do what he is charged of having done, bearing that good reputation, if the jury believes that has been established, then that may be sufficient to generate a reasonable doubt, but you do not acquit by reason of the good reputation the man established, but by reason of a reasonable doubt engendered by having established a good reputation."
Proctor Snodgrass, of Scottsboro, for appellant.
The witness should have been required to describe the several tracks and leave it to the jury to say whether they were the same. Hodge v. State, 97 Ala. 37, 12 So. 164, 38 Am. St. Rep. 145; Pope v. State, 174 Ala. 63, 57 So. 245; Loper v. State, 205 Ala. 216, 87 So. 92. Charge C was good, and should have been given. Camillieri v. State, 19 Ala. App. 521, 99 So. 66; 4 Michie's Ala. Dig. 363. The defendant should have had the affirmative charge. Wheat v. State, 19 Ala. App. 538, 98 So. 698; Gay v. State, 19 Ala. App. 238, 96 So. 646; Ex parte Acree, 63 Ala. 234; Ott v. State, 160 Ala. 29, 49 So. 810.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Evidence connecting defendant with the crime charged was entirely circumstantial. There was evidence tending to prove that a car which made a peculiar track had been followed by a witness from a point where it had been rolled out of a ditch near the storehouse that had been robbed, to a point several miles in the direction of defendant's dwelling. This was Wednesday evening after the robbery Tuesday night. This track disappeared from the road and was lost. It rained all day Thursday. On Friday witness went back into the neighborhood of defendant's home and "got on trace of a little old car like this. * * * We traced that on and run it to a cold trail and found out it was the wrong car." On Saturday "we found this same little car track about a quarter of a mile from Welden's place." At this point, over objection and exception of defendant, the solicitor was allowed to ask the witness: "Was that last track you saw of the same appearance as the track you had tracked from where it rolled out of the ditch up to where you lost it?" The answer was: "Yes, sir, just exactly the same track." This was error to a reversal. 1 Mayfield, Dig. 332 (18) 417; Loper v. State, 205 Ala. 216, 87 So. 92. A witness may say that two sets of tracks correspond, Busby v. State, 77 Ala. 66; that he measured two sets of tracks and they measured the same, Gilmore v. State, 99 Ala. 154, 13 So. 536. These are statements of collective facts, but to say that two sets of tracks are the same based upon mere observation is but the expression of an opinion. Authorities supra. The witness should not be allowed to say that the two sets of tracks correspond. He should state the facts showing such correspondence and let the jury draw a conclusion from the facts stated. Livingston v. State, 105 Ala. 127, 16 So. 801; Loper v. State, supra.
Refused charges 2, M, and R, requesting affirmative relief, are properly refused. The corpus delicti is proven beyond a doubt, and there is sufficient evidence, although entirely circumstantial, to make the guilt of the defendant as a participant in the crime one of fact for the jury. For obvious reasons the evidence is not discussed.
Refused charge C is practically a copy of an excerpt taken from the oral charge of the circuit judge in the case of Camillieri v. State, 19 Ala. App. 521, 522, 99 So. 66, and was there held by this court to be free from error when given as a part of the general charge. The charge states the law correctly, but is argumentative. In undertaking to explain to the jury the law applicable to a consideration of general character as an evidentiary fact, the giving of this charge would not be reversible error; nor is its refusal error because of its argumentative nature. Moreover, the court in this case charged fully on this question and substantially covered the law on the subject.
Under some circumstances, the error above pointed out would not be sufficient to warrant a reversal; but upon a reading of this record we are convinced that the exclusion of the evidence affected thereby might have an influence upon the verdict. The judgment is reversed, and the cause is remanded.
Reversed and remanded.