4 Div. 109.
December 13, 1923. Rehearing Denied January 31, 1924.
Harwell G. Davis, Atty. Gen., and Oscar S. Lewis, of Dothan, for petitioner.
Failure of the charge, given for the state, to refer to the evidence, did not render it affirmatively faulty. Clayton v. Jordan, 209 Ala. 334, 96 So. 260. Charges 2 and 3, refused to defendant, are not predicated upon the evidence, and there was no error in their refusal. Davis v. State, 188 Ala. 59, 66 So. 67; Edwards v. State, 205 Ala. 160, 87 2 So. 179. There is no error to refuse a charge the effect of which has already been given in instruction to the jury, and which given instructions require a lesser degree of proof than the one refused.
Lee Tompkins, of Dothan, and James J. Mayfield, of Montgomery, opposed.
Charge 1, given for the state, was faulty, in failing to predicate a conviction upon belief of the evidence. Davis v. State, 188 Ala. 59, 66 So. 67; Edwards v. State, 205 Ala. 160, 87 So. 179. The case of Clayton v. Jordan, cited by petitioner, is a civil case, and has no application here. In a criminal case the presumption of innocence attends the defendant until his guilt is established beyond all reasonable doubt. Newsome v. State, 107 Ala. 134, 18 So. 206; Rogers v. State, 117 Ala. 192, 23 So. 82. The error in refusal of charges requested by defendant was not cured by given charges.
In its opinion on application for rehearing the Court of Appeals held the giving of charge 1 at the request of the state was error to reverse — this upon the ground that the charge fails to base or hypothesize the jury's conclusion upon belief "from the evidence." We have heretofore decided that trial courts may without error refuse such charges (Davis v. State, 188 Ala. 59, 66 So. 67, referred to in Edwards v. State, 205 Ala. 160, 87 So. 179), but reasons why error should not be predicated of the giving of such charges, when in other respects they state the law of the case correctly, were stated by Stone, C. J., in Hall v. Posey, 79 Ala. 84, and that decision has been consistently followed in subsequent cases. Mansfield v. Morgan, 140 Ala. 567, 37 So. 393; Davis v. Kornman, 141 Ala. 479, 37 So. 789; Duncan v. St. L. San F., 152 Ala. 133, 44 So. 418; State v. Brintle, 207 Ala. 500, 93 So. 429; Clayton v. Jordan, 209 Ala. 334, 96 So. 260. And there is no reason why this rule should not apply in criminal as in civil causes.
Error, in the opinion of the Court of Appeals, is also predicated of the trial court's refusal of charges 2, 3, and 15, requested by defendant. We assume that there was a phase of the evidence calling for a correct statement to the jury of the general rule of law embodied in these charges, for similar charges were given in the trial court, and otherwise the question as to the charges now under discussion would have been dismissed from consideration as abstract. On the authority cited first above, error cannot be predicated of the refusal of charges 2 and 3, for they do not hypothesize the jury's belief as "from the evidence." But the refusal of charge 15 raises a different question, for the hypothesis there is that "the" jury believe from the testimony," etc. The legal proposition sought to be stated in this charge is usually predicated of a "finding" by the jury, and in that form this court has frequently said that it should be given in cases calling for its application. By it the jury are instructed, not that they must disregard the whole testimony of the witness in the event hypothesized, but only that they may do so — have the legal right to do so. McClellan v. State, 117 Ala. 140, 23 So. 653; A. G. S. R. R. v. Frazier, 93 Ala. 45, 9 So. 303, 30 Am. St. Rep. 28; Jordan v. State, 81 Ala. 20, 1 So. 577; Childs v. State, 76 Ala. 93. Other cases to the same effect might be cited. But our judgment is that in charges 6 and 7, given to the jury at his request, defendant had the benefit of the general proposition involved in a form more favorable to his cause, and has now no just ground of complaint. "Believe," the term used in the refused charge, is stronger, expresses a deeper degree of conviction, than the phrase "reasonably satisfied," employed in the charges given. Farmers' Merchants' Bank v. Hollind, 200 Ala. 371, 76 So. 287. Defendant may have been willing to have the proposition stated in terms less favorable than his due; but it was no business of the trial court to give in charge to the jury any instruction except in the correct and appropriate terms of the law.
The conclusion is that the Court of Appeals erred in its consideration of the charges under discussion, and that, as for any question made upon these charges, the judgment of the trial court should have been affirmed.
Writ granted; judgment of the Court of Appeals reversed, and cause remanded to that court for further proceedings in accordance with this opinion.
All the Justices concur.