Henderson v. State

• Decision Date: 07 February 1899
• Citation: 120 Ala. 360,25 So. 236
• Parties: HENDERSON v. STATE.
• Court: Alabama Supreme Court

25 So. 236

120 Ala. 360

HENDERSON v. STATE.

Supreme Court of Alabama

February 7, 1899

Appeal from circuit court, Henry county; W. L. Parks, Judge.

Sam Henderson was indicted, tried, and convicted of forgery, and sentenced to the penitentiary for five years, and appeals. Reversed.

The instrument alleged to have been forged is copied in the opinion. During the examination of one Aaron Holmes, a witness for the state, and after he had testified that, on the night before the defendant delivered the forged instrument, the latter came to his house, and the witness and his brother and the defendant went to town together next day when the defendant is shown to have uttered the forged instrument, he was asked the following questions by the solicitor for the state: "What did the defendant say to you, the night he came to your house, before coming to town next day, about an order for some goods or for trade for five dollars?" The defendant objected to this question, upon the ground that it called for the confession and a proper predicate had not been laid. The court overruled the defendant's objection, allowed the question to be answered, and to this ruling the defendant duly excepted. The witness answered that the defendant told him he had an order for five dollars on Mr. Beach, and would go to town next day and trade it out. The defendant moved to exclude this answer from the jury, upon the ground that it was a confession, and no proper predicate had been laid. This motion the court overruled, and to this ruling the defendant duly excepted. Upon the state offering to introduce in evidence the order alleged to have been forged, the defendant objected to this introduction, upon the ground that the person to whom it was made payable was too indefinite and uncertain. The court overruled this objection, allowed the order to be introduced in evidence, and to this ruling the defendant duly excepted. The other facts are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that if the jury are not satisfied beyond all reasonable doubt, to a moral certainty, and to the exclusion of every reasonable hypothesis but that of defendant's guilt, they should find the defendant not guilty; and it is not necessary, to raise a reasonable doubt, that the jury should find, from all the evidence, a probability of defendant's innocence in the testimony, but such a doubt may arise even when there is no probability of defendant's innocence in the testimony, and, if the jury have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to find the defendant not guilty." (2) "The court charges you that not only must the guilt of the defendant follow as the only conclusion of reason from the whole evidence before a conviction may be had, but, in addition to that, if a reasonable doubt follows or grows out of all the evidence, the defendant must be acquitted." (3) "To warrant a conviction, the defendant must be proven guilty so clearly and conclusively that there is no reasonable theory on which he can be innocent, when all the evidence is considered together; and if there is any one material fact, which is proved to the satisfaction of the jury by a preponderance of the evidence, which is inconsistent with the guilt of the defendant, this is sufficient to raise a reasonable doubt." (4) "The court charges the jury that, even after the evidence has removed all probability of the defendant's innocence, the law says that then they may entertain a reasonable doubt of defendant's guilt; and, if such doubt is entertained, it is the jury's duty to acquit the defendant." (5) "If there is a probability of defendant's innocence the jury must acquit the defendant." (6) "If the jury believe the evidence, they will find the defendant not guilty."

Lee &amp Lee, for appellant.

Charles G. Brown, Atty. Gen., for the State.

DOWDELL J.

The defendant was tried and convicted in the circuit court of Henry county under...