Bush v. State, 4 Div. 790.

CourtAlabama Court of Appeals
Writing for the CourtBRICKEN, P.J. PER CURIAM.
Citation100 So. 307,19 Ala.App. 650
Decision Date03 April 1923
Docket Number4 Div. 790.
PartiesBUSH v. STATE.

Rehearing Granted July 10, 1923.

Rehearing Denied Nov. 13, 1923.

Reversed after Mandate April 8, 1924.

Rehearing Denied April 22, 1924.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Leo Bush was convicted of an assault with intent to ravish, and appeals. Reversed and remanded on rehearing.

Samford J., dissenting in part.

Lee &amp Tompkins and E. H. Hill, all of Dothan, and James J Mayfield, of Montgomery, for appellant.

Harwell G. Davis, Atty. Gen., and O. S. Lewis, of Dothan, for the State.


This appellant, defendant in the court below, was charged by indictment with an assault to ravish Alma McNeal. He was convicted as charged and was duly sentenced to imprisonment in the penitentiary for an indeterminate term of not less than four years or more than five years. From this judgment he appeals.

Numerous exceptions were reserved to the rulings of of the court upon the admission and exclusion of evidence introduced or offered in the progress of the trial of this case. In every instance, however, the objection to the testimony and the motion to exclude were of a general character, and as shown by the record, in no instance in this connection were any grounds assigned; not even the usual general objection "because illegal, irrelevant, immaterial and inadmissible." Here, the counsel merely "objected." It follows therefore that none of the rulings of the court upon the testimony are presented in a manner authorizing a revision of the court's action in making any of the rulings. Circuit Court Rule 33, Code 1907, p. 1527, provides:

"When, in the progress of the trial of any cause in a court of original jurisdiction, objection and exception are reserved to the introduction of testimony that is not patently illegal, or irrelevant, such exception will not be considered an error, unless the record shows that the grounds of objection were specified. *** And the appellate court, in revising such decision, must consider only the grounds of objection which are shown to have been clearly specified."

As provided in above rule, of course, if any of the testimony offered was manifestly, or, as stated in the rule, patently illegal or irrelevant, a formal general objection would suffice. But here, none of the evidence was of this character, as under the theory of a conspiracy as contended by state it was not manifestly illegal or irrelevant, and incapable of being rendered admissible in connection with other evidence. Adams Hardware Co. v. Wimbish, 201 Ala. 547, 78 So. 901, and cases cited. See, also, Washington v. State, 106 Ala. 58, 17 So. 546; Gunter v. State, 111 Ala. 23, 28, 20 So. 632, 56 Am. St. Rep. 17; Bates v. Morris, 101 Ala. 282, 13 So. 138, Carroll v. State, 16 Ala. App. 454, 78 So. 717; Lundy v. State, 17 Ala. App. 454, 85 So. 819; Thomas v. State, 139 Ala. 85, 36 So. 734. In Washington v. State, supra, it was said:

"The court is not bound to cast about for the grounds of the objection. *** The rule requires that the party appealing must affirmatively show error."

Under the testimony in this case there is no theory upon which the defendant was entitled to the general affirmative charge; therefore the court properly refused to give charge 1 requested by him.

Charges 2, 3, and 15, refused to defendant, state a correct proposition of law, and the appellate courts of this state have many times so declared. But error cannot be predicated here upon the refusal of these charges for the reason that given charges 6 and 7 fully cover these charges. The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge, or in charges given at the request of parties.

Charge 4 was properly refused. It is objectionable in that it singles out a part of the testimony, and is bad in other respects. Even if the witness Alma McNeal had been successfully impeached, the court would have no authority to instruct the jury as a matter of law to wholly disregard all of the testimony of this witness. If said witness had been impeached, it was the duty of the jury to weigh the evidence given by her in the light of that fact, and if after so weighing her testimony, they arrived at the conclusion that it was untrue, the jury in that event would have the right to disregard it. But under no circumstance would the court be authorized to charge the jury as a matter of law that they should wholly disregard the testimony of this witness. Pentecost v. State, 107 Ala. 81, 93, 18 So. 146. The court's oral charge in this connection was clear and explicit.

Under the authority of Worthy v. State, 152 Ala. 49, 44 So. 535, refused charges 5, 6, 8, 9, and 10 are bad as being invasive of the province of the jury. See, also, Marasso v. State, 18 Ala. App. 488, 93 So. 226; Rogers v. State, 16 Ala. App. 58, 75 So. 264.

Charge 7 was properly refused; it singles out a part of the evidence, and is invasive of the province of the jury.

Charge 13 refused to defendant was fairly and substantially covered by the oral charge of the court.

Refused charge 14 is wholly abstract, there being no semblance of testimony showing, or tending to show, consent by prosecuting witness Alma McNeal.

Charge 16 was fairly and substantially covered by the oral charge of the court, and by given charge 7 requested by defendant. See, also, Koch v. State, 115 Ala. 99, 22 So. 471.

The oral charge of the court was an excellent exposition of the law applicable to the facts in this case. It was clear, able, forceful, and fair; and the able counsel representing this defendant reserved no exception to any portion of the charge, nor did they complain of this charge in any manner. We are of the opinion that this defendant has been accorded a fair and impartial trial, and that by no ruling of the court has his substantial rights been injuriously affected.

The record is also free from error. Let the judgment appealed from stand affirmed.


On Rehearing.

This case has received a very careful consideration on application for rehearing. Special counsel for the prosecution has also filed a brief in reply to the application for rehearing which has received our careful consideration.

On the rehearing we have reached the conclusion that there was error in the trial court which necessitates a reversal of the judgment of conviction, and consequently of granting a rehearing and of modifying the opinion of this case as follows:

We have reached the conclusion that the giving of charge 1 at the request of the state was error to reverse. That charge reads as follows:

"If the jury are satisfied beyond a reasonable doubt that defendant assaulted Alma McNeal, then the jury cannot acquit him."

The main error in this charge is that it does not base or predicate a conviction upon a "belief of the evidence" by the jury beyond a reasonable doubt. Charges requesting a conviction or acquittal must be based or predicated upon a belief of the evidence, and in criminal cases, in order to convict, the jury must believe beyond a reasonable doubt from the evidence in the case that the defendant is guilty. The belief or satisfaction of the jury to support a conviction in a criminal case must be based or predicated upon the evidence. The jury might be satisfied of the guilt of defendant beyond a reasonable doubt, although the evidence in the case might show the defendant to be innocent, or at least create a reasonable doubt in the minds of the jury as to his guilt. The jurors might have personal knowledge of the guilt of the defendant, or they might be satisfied beyond a reasonable doubt from mere rumors or gossip, yet such satisfaction would not justify a verdict of guilty. The oath of the jury is to well and truly try the issue between the state and the defendant and a true verdict render according to the evidence. They are not authorized to render verdicts of guilty unless the evidence in the case satisfies the jury beyond a reasonable doubt. Consequently, the charge was erroneous and could not be cured by the giving of other charges predicated or conditioned on the verdict upon the belief of the evidence beyond a reasonable doubt.

An erroneous charge cannot be cured by giving a correct one. The jury would be left in doubt as to which charge to follow-the correct or incorrect one. The error in refusing a correct charge may be cured by the giving of other correct charges; but the giving of an erroneous charge cannot be so cured by the giving of court charges. The error of the giving of misleading charges may also be cured by the giving of other charges, but not so as to the error in giving erroneous charges. The repeated rulings of this court have held that it was error to give charges, and not to refuse them, which fail to predicate or base the verdict of guilty or not guilty upon the evidence in the case. Davis v. State, 188 Ala. 59, 66 So. 67; Edwards v. State, 205 Ala. 160, 87 So. 179.

We decided on the original hearing that charges 2, 3, and 15 refused the defendant, state correct propositions of law, and that the appellate courts of this state had many times so declared; but we held that error could not be predicated upon the refusal of those charges for the reason that the given charges, 6 and 7, fully covered those charges. On further examination of the question of authorities, we have reached the conclusion that the error in refusing these charges was not cured by the giving of charges 6 and 7 or by the oral charge of the court. It will be observed that each of these given charges required the...

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