Towns v. State

• Decision Date: 25 June 1896
• Citation: 20 So. 598,111 Ala. 1
• Parties: TOWNS v. STATE.
• Court: Alabama Supreme Court

20 So. 598

111 Ala. 1

TOWNS v. STATE.

Supreme Court of Alabama

June 25, 1896

Appeal from city court of Talladega; John W. Bishop, Judge.

Whit Towns was convicted of burglary, and appeals. Affirmed.

The appellant was indicted, tried, and convicted for burglary. The indictment contained three counts. In two of the counts the ownership of the house was laid in Will McClellan. In the other count the ownership of the house was laid in Jennie McClellan. In one count the property alleged to have been stolen from the house was alleged to have been the property of Will McClellan, and in the two other counts the property alleged to have been stolen was alleged to have been the property of Jennie McClellan. On the trial of the cause, as is shown by the bill of exceptions, Jennie McClellan, as a witness for the state, testified that, while away from her house, at work in the field near the house, she heard a noise there, and, on going back, saw the defendant jump out of the window of the house, and that the articles alleged to have been stolen in the indictment were taken therefrom; that the window of the house was broken open, and that she recognized the defendant and his brother as they ran off. This witness was asked, on cross-examination, if on the day the house was alleged to have been burglarized she did not tell one of the persons who came there that one Wallace Elston and Ben Conly broke into the house. This the witness denied. There was other evidence introduced for the state tending to show that the defendant had broken into the house. The defendant set up the defense of an alibi, and his evidence tended to show that at the time of the alleged burglary he was at another place in Talladega county, and was not at said house. One of the witnesses introduced by the defendant testified that on the day of the burglary the witness Jennie McClellan told him that Wallace Elston and Ben Conly broke into her house. In rebuttal the state introduced a witness who testified that the character of Jennie McClellan was good, and that her character for truth and veracity was good. Among the charges which were given at the request of the defendant was the following: "If the evidence shows that Jennie McClellan has made conflicting statements as to who committed the alleged breaking, you may, in connection with all the evidence, consider that fact in determining what weight you will give her evidence." The court, at the request of the state, gave to the jury the following written charges and defendant separately excepted to the giving of each of them as asked: (1) "The court charges the jury that the burden of proof is on the defendant to establish his alibi and that it must be done to your reasonable satisfaction." (2) "The court charges you that you can look at the evidence of the good character of Jennie McClellan for truth and veracity in weighing her testimony in this case." After the return of the verdict of guilty the defendant moved the court for an arrest of judgment on the following grounds, among others: (4) "Because the law under which said grand jury was drawn, summoned, and impaneled is unconstitutional." (5) "Because of section 6 of the act amending the act establishing the said court is unconstitutional, in so far as it relates to the drawing, summoning, and impaneling of grand and petit juries are concerned. Said amendatory act was approved February 18 1895." This motion was overruled, and the defendant duly excepted.

Wm. C. Fitts, Atty. Gen., for the State.

BRICKELL C.J.

1. Testimony having been introduced tending to discredit the witness Jennie McClellan, it was competent to introduce evidence to support her general credit as a witness. 1 Greenl. Ev. § 469; Lewis v. State, 35 Ala. 380; Hadjo v. Gooden, 13 Ala. 718. Such evidence having been introduced, and, on the request of the defendant, the court having given specific instructions that evidence of her conflicting statements in reference to material facts affected her credibility, it was very proper to instruct the jury that, in weighing her testimony, they could consider the evidence of her good character for truth and veracity. The evidence would be of little avail, if not useless, if the jury were not to consider it in weighing her testimony.

2. In Prince v. State, 100 Ala. 146, 14 So. 410, the...