Key v. State

• Decision Date: 09 April 1912
• Citation: 4 Ala.App. 76,58 So. 946
• Parties: KEY v. STATE.
• Court: Alabama Court of Appeals

58 So. 946

4 Ala.App. 76

KEY v. STATE.

Court of Appeals of Alabama

April 9, 1912

Rehearing Denied May 4, 1912.

Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.

Nat Key was convicted of burglary, and he appeals. Affirmed.

The solicitor in his argument stated that no one denied that defendant had the hides and sold them to a white man in two or three weeks after the place was burglarized. The following charges were refused to the defendant: A. "It is the humane provision of the law that upon circumstantial evidence there should not be a conviction unless to a moral certainty it excludes every other hypothesis but that of the guilt of the accused. No matter how strong may be the circumstances if they can be reconciled with the theory, based on the evidence, that some other person may have done the act, then the guilt of the accused is not shown by the full measure of the proof that the law requires." G. "No matter how strong the circumstances relied on to establish the guilt of the defendant may be, if they can be reconciled with the theory, based on the evidence, that some one other than defendant committed the crime, they should not convict the defendant." E. "The court charges the jury that it is a well-settled rule of law that, if there is a reasonable construction which can be given to facts proven, one favorable and the other unfavorable to the party charged with crime, it is the duty of the jury to give that which is favorable to the accused, rather than that which is unfavorable." H. "Circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence, and the jury should be so convinced by it that each would be willing to act on the decision in matters of highest concern to themselves."

Paul Hodges, of Florence, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

The defendant was indicted for burglary. As burglary is a felony and as sections 6450, 6456, 6463, and 6465 of the Code, as amended by the act entitled an act to amend the above sections of the Code, approved August 25, 1909 (Gen. &amp Local Acts of Ala. Special Session 1909, p. 117), apply only to children under 14 years of age who are charged with misdemeanors, not felonies, the defendant can claim no exemption by virtue of any of the statutes of Alabama covering the subject of juvenile delinquents from a conviction under the indictment in this case.

1. The presumption of the law is that an infant over seven and under fourteen years of age does not possess sufficient mental capacity to commit a felony, but this inference is rebuttable.

The question as to whether an infant over seven and under fourteen years of age does or does not possess sufficient mental capacity to commit a felony is ordinarily a question for the jury under the facts of each particular case. When the evidence discloses that a defendant in a felony case is over seven and under fourteen years of age, the presumption that he does not possess sufficient mental capacity to commit the crime goes to the jury subject to rebuttal by facts and circumstances or other evidence tending to show sufficient mental capacity on the part of the defendant to commit the crime. The presumption of mental incapacity becomes less strong with the increase of years, but until the age of fourteen is reached "the presumption is that he has not the requisite guilty knowledge of the wrongfulness or wickedness of the act charged to authorize a conviction of felony, unless rebutted by clear evidence of a mischievous disposition, or by proof of knowledge of good and evil, which knowledge must be made distinctly to appear from the evidence." Reynolds v. State, 154 Ala. 14, 45 So. 894. The circumstances connected with the offense charged may be so proved as to satisfy the jury beyond a reasonable doubt that a defendant over seven and under fourteen years of age was at the time of the commission of the offense mentally capable of entertaining a criminal intent, doli capax. 16 Am. & Eng. Ency. of Law (2d Ed.) 315. Under the evidence in this case, the question as to whether the defendant, who, according to the tendencies of the evidence, was about 13 years old when the crime was committed, possessed the requisite guilty knowledge of the wrongfulness of the act charged to authorize a conviction of the crime, was a question for the jury. Reynolds v. State supra.

2. It is, of course, the duty of an advocate, in addressing a jury, to confine his remarks within legitimate bounds, and it is the duty of the presiding judge to see that this duty is observed. When an illegal argument is made by an advocate to a jury, and the court, upon a proper objection and motion to exclude by the party against whom such argument is made, permits such argument to remain before the jury, an appellate court, upon a proper exception to the action of the trial court, will reverse the judgment of the trial court, provided the record does not show that the party complaining was not injured by such argument. Du Bose v. Conner, 1 Ala. App. 456, 55 So. 432. Under the facts as they existed in this case, as shown by the bill of exceptions, we do not think that the portion of the argument to which the defendant objected and which he has called upon this court to review transgressed the bounds of legitimate argument.

3. The evidence tended to show that a house in which, among other things, one...