McConnell v. Adair

• Decision Date: 17 May 1906
• Citation: 147 Ala. 599,41 So. 419
• Parties: MCCONNELL v. ADAIR.
• Court: Alabama Supreme Court

41 So. 419

147 Ala. 599

MCCONNELL v. ADAIR.

Supreme Court of Alabama

May 17, 1906

Appeal from Circuit Court, Walker County; A. A. Coleman, Judge.

"To be officially reported."

Action by L. L. McConnell against J. E. Adair. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.

Lacy &amp Lacy and J. A. Mitchell, for appellant.

Ray Leith & Shepherd and Acuff & McCullon, for appellee.

SIMPSON J.

This was an action for rent due under a written contract, in which judgment was rendered in favor of the defendant, and the assignments of error are to certain charges given by the court and to the action of the court in overruling a motion for a new trial.

The first assignment of error is to the giving, on request of the defendant, of the written charge: "If the jury do not believe the evidence in this case, they must find for the defendant." This is a charge which has been considered by this court several times in different lights. In A. G S. R. Co. v. McAlpine, 80 Ala. 73, the evidence was without conflict that the mare had been killed by the railroad, and the question before the jury was whether the defendant had sustained its contention that the killing was without negligence, in regard to which the burden was on the defendant. The court had given the general charge in favor of the defendant, and this court said that it was proper for the court to charge the jury, on request by plaintiff, that if "under the facts and circumstances shown in evidence they did not believe the evidence offered by the defendant tending to acquit itself of negligence, then a verdict may be found as to the mare for the plaintiff." In the case of Segars v. State, 86 Ala. 59, 5 So. 558, the only witness on the part of the state was impeached by contradictory statements, and this court held that it was proper to give the charge that, "if the jury have a reasonable doubt" of the truth of the statements of said witness, they cannot convict, because "the jury are not anthorized to find the defendant guilty on the evidence of a single witness upon whose testimony the question of guilt depends, if they have a reasonable doubt of the truth of his statements." In the case of Seibold v. Rogers, 110 Ala. 438, 18 So. 312, the McAlpine Case was followed, without argument, in an action of trover, as "the burden was on the plaintiff to make out his case by proof, and, if the evidence he offered in that behalf was not to be believed by the jury, there was a failure of proof entitling the defendant to a verdict. This last case came up for review and was modified in the case of Koch v. State, 115 Ala. 99, 22 So. 471; this court holding that in that case such a charge was properly refused, saying: "The charge is obscure, its meaning difficult to interpret, and it was calculated to confuse and mislead the jury,"--and going on to say that, as the...