Linzy v. State, 3 Div. 765
Decision Date | 12 June 1984 |
Docket Number | 3 Div. 765 |
Citation | 455 So.2d 260 |
Parties | William LINZY v. STATE. |
Court | Alabama Court of Criminal Appeals |
Raymond Johnson, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and J. Callen Sparrow, Asst. Atty. Gen., for appellee.
William Linzy was convicted of theft in the first degree by a Montgomery County jury. He was sentenced to life imprisonment under the Alabama Habitual Felony Offenders Act, § 13A-5-9, Code of Alabama 1975. Linzy raises three issues on appeal.
Appellant claims error in the trial court's refusal to give a requested jury instruction regarding reasonable doubt arising from lack of evidence. Linzy's requested charge number three states, "I charge you that reasonable doubt can arise from a lack of evidence as well as conflicting evidence."
Alabama follows the general rule that a trial court's refusal to give requested jury instructions does not constitute reversible error when the principle covered by the requested charge was substantially and fairly covered in the trial court's instructions to the jury. King v. State, 356 So.2d 1220 (Ala.1978); Shields v. State, 397 So.2d 184 (Ala.Crim.App.), writ denied, Ex parte Shields, 397 So.2d 189 (Ala.1981). Ala.Digest Key No. 829(18).
The trial court substantially and fairly instructed the jury as to reasonable doubt. For this reason, failure to give the requested charge is not reversible error.
Linzy further contends that the trial court erred in failing to give his requested jury instructions regarding his failure to testify at trial. Appellant's requested instructions nine and ten, stated:
The record on appeal reveals a colloquy between the trial court and defense counsel out of the presence of the jury following the oral charge in which express reference to the omission was made, but no objection was made and no error preserved.
(emphasis supplied)
Nothing further regarding the instructions was said. This exchange reveals ample opportunity for appellant's counsel to lodge any objections he had regarding the trial court's refusal to instruct the jury on Linzy's failure to testify. This court may consider only those issues preserved in the record. "In the absence of a ruling, a request for a ruling or an objection to the court's failure to rule, there is nothing preserved for appellate review." Stewart v. State, 398 So.2d 369, 374 (Ala.Crim.App.), writ denied, Ex parte Stewart, 398 So.2d 376 (Ala.1981). Appellant's failure to object removes the subject from our consideration.
Appellant Linzy asserts finally that the trial court erred in allowing the case to go to the jury. He contends that the circumstantial nature of the state's case was insufficient to present a jury question and that the court erred in denying his motions for acquittal at the end of the state's case and following the verdict of the jury.
The argument that circumstantial evidence is inferior to direct evidence has been laid to rest. Graham v. State, 374 So.2d 929 (Ala.Crim.App.), writ quashed, 374 So.2d 942 (Ala.1979). The mere fact that evidence is of a circumstantial nature does not make it deficient. "Circumstantial evidence is entitled to the same weight that direct evidence is entitled to provided that it points to the guilt of the accused." Mains v. State, 375 So.2d 1299 (Ala.Crim.App.1979); Cummings v. State, 356 So.2d 779 (Ala.Crim.App.1978); McCay v. State, 343 So.2d 577 (Ala.Crim.App.1977).
The standard of review in determining sufficiency of evidence is whether evidence existed at the time appellant's motion for acquittal was made, from which the jury could by fair inference find the accused guilty. Stewart v. State, 350 So.2d 764 (Ala.Crim.App.1977); Hayes v. State, 395 So.2d 127 (Ala.Crim.App.), writ denied, Ex parte Hayes, 395 So.2d 150 (Ala.1981). Stated differently, the test is "whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis, but...
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