Welden v. State
| Decision Date | 19 March 1929 |
| Docket Number | 8 Div. 830. |
| Citation | 121 So. 4,23 Ala.App. 85 |
| Parties | WELDEN v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
Robert Welden was convicted of burglary, and he appeals. Reversed and remanded.
Proctor & Snodgrass, of Scottsboro, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
Evidence connecting defendant with the crime charged was entirely circumstantial. There was evidence tending to prove that a car which made a peculiar track had been followed by a witness from a point where it had been rolled out of a ditch near the storehouse that had been robbed, to a point several miles in the direction of defendant's dwelling. This was Wednesday evening after the robbery Tuesday night. This track disappeared from the road and was lost. It rained all day Thursday. On Friday witness went back into the neighborhood of defendant's home and On Saturday "we found this same little car track about a quarter of a mile from Welden's place." At this point, over objection and exception of defendant, the solicitor was allowed to ask the witness: "Was that last track you saw of the same appearance as the track you had tracked from where it rolled out of the ditch up to where lost it?" The answer was: "Yes, sir, just exactly the same track." This was error to a reversal. 1 Mayfield, Dig 332 (18) 417; Loper v. State, 205 Ala. 216, 87 So 92. A witness may say that two sets of tracks correspond Busby v. State, 77 Ala. 66; that he measured two sets of tracks and they measured the same, Gilmore v. State, 99 Ala. 154, 13 So. 536. These are statements of collective facts, but to say that two sets of tracks are the same based upon mere observation is but the expression of an opinion. Authorities supra. The witness should not be allowed to say that the two sets of tracks correspond. He should state the facts showing such correspondence and let the jury draw a conclusion from the facts stated. Livingston v. State, 105 Ala. 127, 16 So. 801; Loper v. State, supra.
Refused charges 2, M, and R, requesting affirmative relief, are properly refused. The corpus delicti is proven beyond a doubt, and there is sufficient evidence, although entirely circumstantial, to make the guilt of the defendant as a participant in the crime...
To continue reading
Request your trial
-
Brown v. State, 6 Div. 238
... ... State, 28 Ala.App. 314, ... 184 So. 206, condemned a charge similar to Charge 16 in the ... case at bar. We approve that holding ... [33 ... Ala.App. 105] We hold, also, that Charge 20 was properly ... refused because of its argumentative tendencies. Welden ... v. State, 23 Ala.App. 85, 121 So. 4 ... Refused instructions 23, A-1, and A-2 are general affirmative ... charges. Unquestionably their rejection is authorized under ... the evidence in this case ... The ... following charges give undue prominence to portions ... ...
-
May v. State, 8 Div. 749
...v. State, 33 Ala.App. 614, 36 So.2d 117; Wilson v. State, 243 Ala. 1, 8 So.2d 422. Charge 22 is argumentative in tendency. Welden v. State, 23 Ala.App. 85, 121 So. 4. The court's oral charge and given written charges fully covered the doctrine of the burden of proof cast on the State. Charg......
-
Hannon v. State
...109, 82 So. 557; Gravette v. State, 25 Ala.App. 347, 147 So. 641; Sampleton v. State, 21 Ala.App. 408, 108 So. 650; Welden v. State, 23 Ala.App. 85, 121 So. 4 will not disturb the judgment of the trial judge in his action in denying appellant's motion for a new trial. Wilson v. State, supra......
- Booker v. State