Bailey v. State

EVANS, J. On examination of defendant Robert Jones, as a witness for himself, after he had testified that he and the state’s witness, George Sankey, were not on good terms, that he had had trouble with George San-key in Mr. Slaughter’s lot, his attorney asked him, “Did he (speaking of George Sankey) run you into the crib?” State objected to the question, court sustained the objection, and defendant excepted. The court did not err in this ruling. It was competent to prove that defendant Robert Jones and witness George Sankey had had a prior difficulty, for the purpose of impeaching San-key’s testimony; he being a witness for the state in the [lending cause. The fact of the difficulty could be shown and the gravity of the difficulty or the contrary, but its merits or details could not be proved, nor any particulars tending to show who was at fault. The purpose is to show such a bad state of feeling toward the defendant Robert Jones as would tend to bias the testimony of the witness George Sankey. — Jones v. State, 76 Ala. 15. The fact that on the cross-examination of the said state’s witness, George Sankey, .he had denied that he had run the said defendant into the crib, could not help the matter. The indulgence of the court toward defendant on the cross-examination of Sankey could not be moulded into a special privilege for defendant on the direct examination of defendant as a witness for himself. The latitude allowed on a cross-examination of a witness is largely in the discretion of the trial court, but certainly this latitude so allowed should not widen the privilege of defendant in the examination of his own witnesses. The above criticism will apply to all the questions asked the said Robert Jones and to the ruling of the court on which the defendant reserved exceptions. [15] The court did not err in giving charge A, requested by the state. The charge merely asserts that, if the witness Anna Mahone was not an accomplice, then her evidence was sufficient- without corroboration to sustain a conviction, provided the jury believed from all the evidence, beyond a reasonable doubt, that defendants were guilty. This charge was ashed for the reason that the law provides that a person cannot be convicted upon the uncorroborated testimony of an accomplice. The meaning evidently intended was that, if the jury found that Anna Mahone was not an accomplice, then her testimony was a. sufficient corroboration to satisfy the law on the subject of corroboration, and, if, after considering this corroborative testimony together with all the other evidence, the jury believed beyound a reasonable doubt that the defendants were guilty, then they should find them guilty. The charge lias misleading tendencies, but these could have been guarded against by written charges that- could have been requested by defendant. Charges 1 and 1½, 16a, 16a½, 17a, 17a½, 27, and'27-|were properly refused. They were affirmative charges asked by defendants or some one of them, and the evidence offered by the state was-sufficient, if believed beyond a reasonable doubt by the jury, to sustain a conviction as to each defendant convicted.. Charge 6 is a string of words without punctuation, and the court should not be held in error for refusing to give it. It is intelligible or unintelligible according to the way one may happen to read it. To make it intelligible, it must be divided into two distinct sentences. No such burden as bringing order out of chaos in reading of written charges requested should be put upon the trial judge. Besides, the word “circumstances” used therein is not an apt- word to express the meaning nec [16] essary to make the charge a good one. The word “circumstances” can hardly be considered as the equivalent of the word “elements.” It is, at least, indefinite and vague in its meaning, and the trial court should not be held in error for refusing the charge. The same is true of charge 6-1. Charge 9, refused to defendants by the court, is substantially the same as charge 25 given to defendant. The same is true of charge 9-j,- refused to the defendants. Charge 25 was given to each defendant separately 'as shown by the record. Charge 11 was erroneous and properly refused for the reason that there were other defendants on trial under the indictment and the allegations of the indictment charged them with the offense also; and the charge might be construed to mean that, if the jury had a reasonable doubt of the guilt of some other defendant, then they should, acquit Robert Jones. Charges 8 and 8-1 were properly refused as requiring too high a measure of proof on the part of the state. It required the state to show that no other persons than defendants could possibly have committed the offense. Charge 12 and 12-1 were substantially given in charge C, except the “set still” part, and we think it impossible to “set still.” Charges 13 and 131- were misleading and properly refuse'd. Those who did not actually or literally break into or enter the store might still be guilty as co-conspirators and helpers in the crime. Charges 14a and 14a! were properly refused, as they had no application to the case sub judice. The evidence here not being circumstantial, the charges were calculated to mislead the jury. Charges 14b and 14b! were properly refused for the reason that there was other evidence to corroborate that [17] of George Sankey and Anna Mahone, viz., that of R. E. Hobbie and others. So, although George Sankey and Anna Mahone may have been accomplices, still there was other corroborative evidence. Charges 15a, 15a!, 20 and 20-1 should have been given. These charges were approved in Garroll v. State 130 Ala. 99, 30 South. 394. Charges 15b and 15b! were misleading and properly refused. If Josephine Segars assisted in the burglary, that was sufficient to constitute her guilt, though she might not have helped plan it, or given her direct consent to the plan, or have- been present when it was planned. Charges 16b and 16b! were properly refused, as they do not properly define the measure of proof required of the state in order to convict defendants, and have been often condemned by this court. Charges 17b and 17b! were properly refused for the reason that they had been substantially given in charges 13, 21, 27, 28 and N, given at request of de fendant. Charges 18 and 18! were properly refused, as they directed the minds of the jury to a part only of the evidence, and that part, too, which was introduced only for the purpose of impeachment. Furthermore, the jury in this case probably did not hear the evidence in the case referred to. It is true there is evidence tending to show a part of what they swore to on the other trial; but this charge assumes as a fact that they swore to what the witnesses testified they swore to on the other trial, or what they admitted they swore to. It was all a matter of proof as to what they swore to on the former trial. Charges 19 and 19! were properly refused as they directed the minds of the jury to a single part of the [18] evidence; and, besides, tended to invade the province of the jury, and stated no proposition of law. Charges 22 and 22£ are argumentative, and were properly refused. Charges 25 and 251 are exactly the same, and had already been given several times, in substance, by the court. Charges 26 and 26-1 should have been given. — Neilson v. State, 146 Ala. 683, 40 South. 221. Charges 26b and 26b! were substantially given in several charges requested by defendant, and were properly refused. Charge 29 is misleading and was properly refused. Besides, it was a question for the jury, upon all the evidence, as to whether or not .she was impeached. Charge 31 was substantially given in other charges given at the request of defendant. Charge 32 was substantially given in charge N, requested by defendants. Besides, it ignores the other evidence in the case. Charges 33 and 33-1 are incomplete sentences, and the meaning intended does not fully appear. They were therefore properly refused. For the errors pointed out, the cause is reversed and remanded. Reversed and remanded. Dowdell, C. J., and McClellan, Mayfield, and Sayre, JJ., concur. Evans, J., dissents.