Inge v. State

• Decision Date: 23 November 1937
• Docket Number: 2 Div. 620
• Citation: Inge v. State, 28 Ala.App. 38, 178 So. 453 (Ala. App. 1937)
• Parties: INGE v. STATE.
• Court: Alabama Court of Appeals

178 So. 453

28 Ala.App. 38

INGE v. STATE.

2 Div. 620

Court of Appeals of Alabama

November 23, 1937

Rehearing Denied Dec. 14, 1937

Appeal from Circuit Court, Hale County; John Miller, Judge.

Jack Inge was convicted of burglary and grand larceny, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Inge v. State (2 Div 110) 178 So. 454.

Herbert & Herbert, of Demopolis, for appellant.

A.A Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen for the State.

RICE, Judge.

Notwithstanding the dissent of two of its ablest members, it seems now thoroughly established by the Supreme Court of our State that "to authorize submission of [a] criminal case to [the] jury, there must be substantial evidence tending to prove all elements of [the] charge; mere scintilla of evidence, in view of [the] presumption of innocence, being insufficient." Ex parte Grimmett, 228 Ala. 1, 152 So. 263.

We will not discuss the evidence contained in the bill of exceptions. It seems unnecessary; though we will remark that the court has read, studied, and considered same, sitting en banc.

All that part wherein appellant is even mentioned has been thoughtfully--and conveniently for the court--segregated and copied into the admirable brief filed here on his behalf.

It may be, and doubtless is, true that it creates a "suspicion" against appellant. But that is not enough.

It is clear to us that "admitting all it tends to prove defendant's (appellant's) guilt is left in uncertainty, or depends upon conjecture or probabilities." In such a case it is the duty of the court to instruct the jury (upon proper request) to acquit the defendant. Copeland v. State, 23 Ala.App. 91 121 So. 445.

As some one has said: "When...