Tatum v. State

Decision Date03 June 1924
Docket Number5 Div. 486.
Citation20 Ala.App. 24,100 So. 569
PartiesTATUM v. STATE.
CourtAlabama Court of Appeals

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

Bosteen Tatum was convicted of possessing a still, and appeals. Reversed and remanded.

Moon &amp Carter, of Lafayette, Paul J. Hooton, of Roanoke, and James J. Mayfield, of Montgomery, for appellant.

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

SAMFORD J.

The defendant insists and bases his principal grounds for reversal upon the action of the trial court in refusing to give at his request charges 1 and 2. These charges are exact copies of charges 17 and 23, held by us to be correct statements of the law in McKenzie v. State (Ala App.) 97 So. 155. The principle of law embraced in the foregoing charges is here challenged by the state.

There is a distinction between direct and circumstantial evidence. In the case of direct proof the truth rests upon our faith in human veracity, sustained by experience. In the case of circumstantial evidence, it rests upon the same ground, with the addition of the experienced connection between the collateral facts thus proved and the fact which is in controversy. There is no intervening process between direct evidence and the fact to be proven. In the case of circumstantial evidence, in addition to the collateral facts proven, we must resort to logic, reason, or experience. 1 Green on Evidence, p. 13. In cases dependent upon circumstantial evidence there must therefore be hypotheses, based upon proven facts; and says Greenleaf (volume 1, par. 11):

"Their force depends on their sufficiency to exclude every other hypothesis but the one under consideration."

And again in the same paragraph:

"To exclude every other hypothesis but that of his guilt."

Wills, in his work on Circumstantial Evidence, groups circumstantial evidence under three classifications, drawing distinctions between the three and also between these and direct or positive evidence, and then concludes:

"Their force depends on their sufficiency to exclude every other hypothesis but the one under consideration."

This grouping is also followed by Wigmore. Wigmore's Ev. p. 43; Wills, Cir. Ev. p. 46, note. Starkie, in his work on Evidence (*840, *841), also recognizes the distinction and the importance of impressing that distinction, and in this connection quotes the rule as laid down by Lord Hale, which he says cannot be too often repeated:

"Tutius semper est errare acquietando, quam in puniendo, ex parte misericordiæ quam ex parte justitiæ."

See Black's Law Dictionary, 1179; 2 Hale, P. C. 290.

He then adds:

"The force and tendency of circumstantial evidence to produce conviction and belief depends upon the consideration of the coincidence of circumstances with the fact to be inferred; that is, with the hypothesis and the adequacy of such coincidences to exclude every other hypothesis."

These principles find their first expression in our decisions through George W. Stone, J., that great jurist, whose heart and mind were touched by the divine attribute that "Mercy should temper justice," and whose learning and wisdom contributed so greatly to the high standing of our decisions in other jurisdictions. Ex parte Acree, 63 Ala 234. It cannot be contended that the announcements there made were mere arguments. Judge Stone was recognizing the distinction between positive and circumstantial evidence, and announcing the humane rules of law governing in such cases. This rule and the principles there stated were quoted and approved by Brickell, C.J., in Pickens v. State, 115 Ala. 42, 50, 22 So. 551, the same ruling having been approved by Head, J., in Gilmore v. State, 99 Ala. 154, 13 So. 536, in which last case the court as then constituted of Stone, C.J., McClellan, Coleman, Head, and Haralson, JJ., did not think the charge was argument, or, as applied to the facts of that case, abstract. Following these decisions and others there cited, Mayfield, J., speaking for the present court, reaffirmed the rule and recognized the distinction between direct and circumstantial evidence. Ott v. State, 160 Ala. 29, 49 So. 810. This court has consistently held to the foregoing rules and adjudications. Wilson v. State, 7 Ala. App. 134, 61 So. 471; Machen v. State, 16 Ala. App. 170, 76 So. 407; Newell v. State, 16 Ala. App. 77, 75 South 625; Cannon v. State, 17 Ala. App. 82, 81 So. 860, Jones v. State, 18 Ala. App. 116, 90 So. 135; McKenzie v. State (Ala. App.) 97 So. 155. Charge 4, condemned in Shepperd's Case, 94 Ala. 102, 10 So. 663, as being an argument, is phrased differently from either of the charges in the case at bar. Charge 1, referred to, but not quoted, in Turner's Case, 124 Ala. 59, 27 So. 272, and condemned as "misleading," without authority cited, may have been as to a state of facts entirely different to the cases in which the principle is correctly applied. In Bowen's Case, 140 Ala. 65, 37 So. 233, Sharpe, J., condemns charges similar to those here under consideration as being misleading, and only cites in support of the brief statement his former holding in Turner's Case, supra, and Bone's Case, 117 Ala. 138, 23 So. 138, in which latter case the charge was held bad because of the omission of the qualifying word "reasonable," which is not the case here. Coleman, J., in Dennis v. State, 112 Ala. 64, 68, 20 So. 925, approves the principles as are set forth in the charges under consideration, but mildly criticizes the use of the word "humane" as applied to the announcement. What possible objection there can be to having juries instructed that there are humane provisions of the law is past the...

To continue reading

Request your trial
22 cases
  • Parsons v. State
    • United States
    • Alabama Supreme Court
    • December 23, 1948
    ...142, 22 So.2d 544, reversed on other grounds, 247 Ala. 55, 22 So.2d 548; Dyson v. State, 28 Ala.App. 549, 189 So. 784; Tatum v. State, 20 Ala.App. 24, 100 So. 569; James v. State, 22 Ala.App. 183, 113 So. Dutton v. State, 25 Ala.App. 472, 148 So. 876; Ott v. State, 160 Ala. 29, 49 So. 810; ......
  • Slayton v. State
    • United States
    • Alabama Court of Appeals
    • February 18, 1936
    ... ... Where this is so, it is too well settled to admit of argument ... or to need the citation of authorities, it becomes the duty ... of the court and jury in a criminal case to so reconcile the ... evidence and to hold the defendant blameless. Tatum v ... State, 20 Ala.App. 24, 100 So. 569; Hand v ... State, 26 Ala.App. 317, 159 So. 275; Overby v ... State, 24 Ala.App. 254, 133 So. 915 ... The ... corroboration necessary to support the testimony of an ... accomplice must be of some fact tending to prove the guilt of ... ...
  • Pruett v. State
    • United States
    • Alabama Court of Appeals
    • April 20, 1948
    ... ... and that, no matter how strong the circumstances were, they ... did not come up to full measure of proof which the law ... required if they could be reasonably reconciled with theory ... that defendant was innocent.' Wilson v. State, ... 243 Ala. 1, 8 So.2d 422, 426, Tatum v. State, 20 ... Ala.App. 24, 100 So. 569. It follows that [33 Ala.App. 495] ... if the evidence does exclude to a moral certainty every ... reasonable hypothesis, etc., a conviction is authorized on ... circumstantial evidence ... In ... Crawley v. State, 15 Ala.App. 327, 73 So ... ...
  • Smith v. State
    • United States
    • Alabama Court of Appeals
    • January 22, 1952
    ...the jury. Charge number 15 pretermits a consideration of all the evidence. Jones v. State, 21 Ala.App. 234, 109 So. 189; Tatum v. State, 20 Ala.App. 24, 100 So. 569. Charge number 16 was covered by the court's oral charge and given written instructions. Title 7, Sec. 273, Code Charge 17, if......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT