Olden v. State
| Decision Date | 04 April 1912 |
| Citation | 176 Ala. 6,58 So. 307 |
| Parties | OLDEN v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Law and Equity Court, Hale County; Charles E. Waller Judge.
Frank Olden was convicted of murder in the first degree, sentenced to the penitentiary for life, and appeals. Reversed and remanded.
The facts and exceptions to evidence sufficiently appear in the opinion of the court. The following are the charges refused (2) "If, after considering all the testimony of the case you think it is not probable that the defendant was innocent, you must acquit him, if you have a reasonable doubt, growing out of any part of the evidence, of his guilt." (3) "If the jury are not satisfied beyond all reasonable doubt, to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the guilt of defendant, then they should find him not guilty; and it is not necessary, to raise a reasonable doubt, that the jury should find from all the evidence a probability of defendant's innocence, but such a doubt may arise, even when there is no probability of his innocence in the testimony, and, if the jury have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to acquit him."
R. B. Evins, of Greensboro, for appellant.
R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.
The appellant was convicted of the crime of murder in the first degree, and sentenced to imprisonment in the penitentiary for life.
The witness George Jordan, having testified, among other things, to the fact that he was the person nearest to defendant and deceased at the time the latter was shot, and the first to get to them afterwards, also that the defendant had no pistol at that time, and that he had never seen him with a pistol during the month that he lived with him, also that he never saw him with a pistol at any time, was asked: "Did you ever see the defendant with a pistol?" To this question the solicitor objected, and the court sustained the objection, and defendant excepted. In this ruling there was no error. In addition to the fact that the witness had just testified as above, it was immaterial as to whether the witness had ever seen defendant with a pistol.
There was no reversible error in permitting Dr. McCollum to testify that the two holes in the defendant's shirt were not made by the same instrument, as no injury resulted to the defendant by allowing the witness to testify to what the jury could see for themselves. Miller v. State, 107 Ala. 40, 56, 19 So. 37; Stevens v. State, 138 Ala. 72, 81, 35 So. 122.
There was no error in sustaining the objection to the question to the witness, Judge Coleman, as to whether, "about a week prior to the death of Mamie Shorter, the defendant came to see him with reference to getting a divorce from his wife for the purpose of marrying the deceased." Besides being self-serving testimony, it was entirely irrelevant. It is not probable that the fact that he wished to marry the woman with whom he was living would have made him any the less jealous of the attentions of another to her, which seems to have been the cause of the difficulty between them, if there was a difficulty.
After the woman (deceased) was shot, the defendant went after Dr Gewin, and Dr. Gewin testified to contradictory statements made by the defendant as they rode in the buggy in regard to the manner in which the shooting occurred. Subsequently the defendant sought to prove by several witnesses that the defendant was subject to epileptic fits, that he had one that night after the doctor got there, and by two physicians that if the defendant, under the circumstances, did have an epileptic fit, then "in the time elapsing between the shooting and the fit, which occurred two or three hours later, he would be mentally irresponsible, and any statements made by him during that time would be the statements of a mentally irresponsible person." The court, after taking the statements of the witnesses to this effect (the jury being excluded), refused to allow the testimony to go before the jury. In this there was error. Even though the facts testified to were not sufficient to exclude the testimony of the contradictory...
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Johnson v. State
...in argument. The rule is that an attorney cannot be allowed to state anything as a fact as to which there is no evidence. Olden v. State, 176 Ala. 6, 11, 58 So. 307. But the solicitor may properly comment upon the evil generally of the crime which the law he is seeking to enforce intends to......
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Krasner v. State, 6 Div. 232.
...... Ala.App. 427] Requested charge 23 has had a tangled history. in our cases. It has been held good in Bell v. State, 115 Ala. 25, 22 So. 526; Rogers v. State, 117 Ala. 192, 23 So. 82; Griffin v. State, 150 Ala. 49, 43 So. 197; Bailey et al v. State, 168 Ala. 4, 53 So. 296; Olden v. State,. 176 Ala. 6, 58 So. 307; Clayton v. State, 23. Ala.App. 150, 123 So. 250; Bufford v. State, 23. Ala.App. 521, 128 So. 126; Dyson v. State, 28. Ala.App. 549, 189 So. 784. On the other hand this charge has. been condemned in Henderson v. State, 120 Ala. 360,. 25 So. 236; Campbell v. ......
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Clayton v. State
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Frost v. State
...and now is the time to start it." Lide v. State, 133 Ala. 43, 31 So. 953; Davidson v. State, 211 Ala. 471, 100 So. 641; Olden v. State, 176 Ala. 6, 58 So. 307; Cross State, 68 Ala. 476. The defendant also maintains that the court committed error to a reversal in giving, at the request of th......