Coleman v. State

• Decision Date: 27 May 1889
• Citation: 87 Ala. 14,6 So. 290
• Parties: COLEMAN v. STATE.
• Court: Alabama Supreme Court

6 So. 290

87 Ala. 14

COLEMAN v. STATE.

Supreme Court of Alabama

May 27, 1889

Appeal from circuit court, Lauderdale county; H. C. SPEAKE, Judge.

Indictment for larceny. (1) Defendant requested the court to charge the jury as follows: "There is no proof that the defendant took to the woods, and the fact, if it be a fact, that defendant was not at the place when the officer sought to find him is not alone evidence that he was avoiding arrest." (2) To justify conviction circumstantial evidence ought to exclude a rational probability of innocence, and a conviction ought not to be had on circumstantial evidence when direct and positive evidence is attainable." Both requests were refused, and defendant Wallace Coleman, duly excepted and appeals.

Emmet O'Neal, for appellant.

W L. Martin, Atty. Gen., for the State.

STONE C.J.

The statement of the sheriff and of the constable, when on the witness stand, that on a certain occasion before his arrest the defendant was "restless, nervous, and excited," if properly objected to would have been inadmissible. Gassenheimer v. State, 52 Ala. 313; McAdory v State, 59 Ala. 92. But, if part of the testimony offered be legal, and the objection is to the whole in a lump, the court is not bound to separate the legal from the illegal, but many overrule the entire objection. 3 Brick. Dig. p. 443, § 570. The other portions of the evidence to which, as a whole, a single objection was interposed, were legal and properly allowed, and there is nothing in these objections. Id. p. 467, §§ 455, 458; Pollock v. Gantt, 69 Ala. 373, 378.

The sheriff was allowed to testify as a witness "that some of the defendant's friends came to town, and he told them that he had a warrant for the arrest of defendant; that he sent defendant word by his friends to come in and give himself up; that the case against defendant amounted to nothing, and that he would have no trouble to get out of it; and a day or two thereafter defendant did come in and surrender. Witness also stated that he did not know that defendant got the message." Defendant excepted to the admission of this evidence.

The circuit court erred in this ruling. There was no legal evidence that defendant had "fled to the woods," if indeed there was any evidence that such was the case. Counsel should not be permitted to state as fact that which is damaging to defendant, and of which there is no legal proof. Charge 2 asked by the...