McKenzie v. State

• Decision Date: 30 June 1923
• Docket Number: 5 Div. 439.
• Citation: 97 So. 155,19 Ala.App. 319
• Parties: MCKENZIE v. STATE.
• Court: Alabama Court of Appeals

97 So. 155

19 Ala.App. 319

MCKENZIE v. STATE.

5 Div. 439.

Court of Appeals of Alabama

June 30, 1923

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

William R. McKenzie was convicted of violating the prohibition law and he appeals. Reversed and remanded.

F. Loyd Tate, of Wetumpka, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

There were demurrers filed to both counts of the indictment assigning 29 grounds, but this court has already many times held that indictments similar to the one in this case are not subject to demurrer. Barnes v. State, 18 Ala. App 344, 92 So. 15; Taylor v. State, 17 Ala. App. 579, 88 So. 205; Reese v. State, 18 Ala. App. 357, 92 So. 77; Holloway v. State, 18 Ala. App. 392, 92 So. 78; Layman v. State, 18 Ala. App. 441, 93 So. 66.

Charge 3 was properly refused. It is not that a witness swears falsely that authorizes the jury to reject his testimony; it must be willfully or intentionally false.

Charge 2 is incomplete.

Charge 5 was covered by the court in his oral charge.

Charge 8 was bad, in that it assumed a premise which did not exist in the evidence. The guilt of defendant did not depend upon the testimony of John Staffney. Eliminating this testimony entirely from the case, still there was evidence from which the jury could have arrived at a verdict of guilt.

Charge 14 omits a consideration of all the evidence and was properly refused.

Charge 17 asserts a correct proposition of law, as has been many times held by this court and the Supreme Court, and should have been given. Bryant v. State, 116 Ala. 446, 23 So. 40; Prater v. State, 107 Ala. 27, 18 So. 238; Cannon v. State, 17 Ala. App. 82, 81 So. 860. It is true the court in his oral charge had instructed the jury correctly on the general law of reasonable doubt and had given several written charges defining in general terms a reasonable doubt, but none of these charges given by the court were in the language of, or substantially covered the phase of, the evidence sought to be impressed upon the jury by this charge refused by the court. Charges moved for by either party must be in writing and must be given or refused in the terms in which they are written. Code 1907, § 5364. But mere repetition need not be given. Smith v. State, 92 Ala. 30, 9 So. 408. It is now fixed by law (Acts 1915, p. 815), that-

"The refusal of a charge though a correct statement of the law shall not be cause for reversal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge or in charges given at the request of parties."

But, it cannot be said that the rule as announced in this charge had been substantially and fairly given, where the charges given were in general terms and based upon general principles, and the charge refused was framed so as to embrace a correct principle as applied to a particular phase of the evidence in the case then on trial.

Charge 23 also asserts a correct proposition, and was not substantially and fairly given by the court either in his oral charge or in written charges requested by defendant. The evidence in this case is largely circumstantial, and where this is the case the humane provision of the law is that defendant should not be convicted if the jury can reconcile...