Ex parte Hill, 5 Div. 892.

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 211 Ala. 311,100 So. 315
• Parties: EX PARTE HILL. v. STATE. HILL
• Decision Date: 22 May 1924
• Docket Number: 5 Div. 892.

100 So. 315

211 Ala. 311

EX PARTE HILL.

HILL
v.
STATE.

5 Div. 892.

Supreme Court of Alabama

May 22, 1924

Certiorari to Court of Appeals.

Petition of Bud Hill for certiorari to the Court of Appeals to review and revise the judgment and decision there rendered in the case of Hill v. State, 100 So. 314. Writ denied.

Jas. W. Strother, of Dadeville, for petitioner.

Harwell G. Davis, Atty. Gen., opposed.

THOMAS, J.

After a discussion of rulings on the introduction of evidence, the further announcement of the Court of Appeals that "the court did not err in any of its rulings" embraced the refusal of defendant's charge 1. It is unnecessary to refer the same to the Court of Appeals for further treatment. Having ruled thereon, a case within Ex parte Cowart, 201 Ala. 55, 77 So. 349, is not presented.

Since there was no specific discussion of the charge, it should be said charges invoking like principles of law of circumstantial evidence have been considered.

The rulings of the Court of Appeals on the subject when considered are not inconsistent. See Gunn v. State, 7 Ala. App. 132, 61 So. 468; Wilson v. State, 7 Ala. App. 134, 61 So. 471; Minor v. State, 15 Ala. App. 556, 74 So. 98; Newell v. State, 16 Ala. App. 77, 75 So. 625; Machem v. State, 16 Ala. App. 170, 76 So. 407; Jones v. State, 18 Ala. App. 116, 90 So. 135. It should be noted, however, that these cases last cited had no specific charge for consideration, as was instant charge 1. In the Jones Case, supra, the approval was of the oral charge declaring that the test is "not that the circumstances be as strong as the testimony of one or more eyewitnesses, but the test is, Do the circumstances produce a conviction of guilt in the minds of the jury to a moral certainty?" The general statement of law that follows cannot be said to authorize the giving by the trial court of the charge under discussion. However this may be, the Newell and Jones Cases do not appear to have had the consideration of this court on certiorari. The Bryant Case, 13 Ala. App. 206, 68 So. 704, said of the charge that "if not otherwise faulty" it "ignored consideration of the evidence," etc. Thus the decisions of the Court of Appeals are reconcilable.

In Chisolm v. State, 45 Ala. 66, it is said of the sufficiency of circumstantial evidence that it should be "such as to exclude a rational probability of innocence" of the defendant. In Salm v. State, 89 Ala. 56, 58, 8 So. 66, charge 20, on circumstantial evidence, that was approved, asserted the proposition that-

"The evidence must be strong and cogent; and unless it is so strong and cogent as to show the defendant's guilt to a moral certainty, the jury must find him not guilty." (Italics supplied.)

In Ex parte Acree, 63 Ala. 234, it is declared that, where the evidence was circumstantial, the defendant should not be convicted on such evidence "unless it shows by a full measure of proof that the defendant is guilty"; such proof is insufficient "unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused"; and "no matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof," etc. (Italics supplied.)

A charge couched in the general statement of law to be found in Ex parte Acree, supra, was approved in Gilmore v. State, 99 Ala. 154, 157, 160, 13 So. 536, while a charge [100 So. 316] of like principle, or similar to that being considered, was condemned as argumentative in Shepperd v. State, 94 Ala. 102, 10 So. 663, Potter v. State, 92 Ala. 37, 9 So. 402, Dennis v. State, 112 Ala. 65, 68, 20 So. 925, and Rigsby v. State, 152 Ala. 9, 44 So. 608.

The subject and form of the charge approved in...