The first insistence of error is that the court permitted the principal state's witness to testify that:
"It was customary for him [witness] to assist an officer of the law of the county to apprehend a criminal."
This is the duty of all good citizens, and the law presumes men will do their duty. The testimony strictly speaking was immaterial, but we do not think it was of such a character to injuriously affect the defendant's case.
Exception is taken to several excerpts from the court's oral charge, wherein the trial judge stated several undisputed facts as disclosed by the evidence. Under section 9507 of the Code of 1923 the court may state the evidence to the jury when the same is undisputed, but shall not charge upon the effect of the evidence unless required to do so by one of the parties. None of these excerpts excepted to violated this rule. Thornton v. State,18 Ala. App. 225, 90 So. 66.
There were found at the still several articles, among which was a coat, with some papers in the pockets, and a brace and bit. The coat was shown to be the property of defendant, but no ownership was shown as to the brace and bit. These were all admissible as being a part of the locus in quo, for what they were worth as evidence in establishing in whom was the possession of the still, and the court properly charged the jury as to how this evidence should be considered. As illustration of the group of exceptions of this nature, the court instructed the jury:
"If he carried the coat there, and left it there, then you may consider that as a circumstance against him."
There was evidence that when the state's witness came upon the parties at the still, they fled. The fact that in their haste to flee they left behind wearing apparel and tools, this fact would increase the value of the evidence of flight, in addition to a tendency towards identification of the parties.
In the oral charge, exception was taken to the following excerpt:
"The defendant is a competent witness in his own behalf, and the law permits him to give his explanation and give his version, and you are not capriciously or captiously to disregard it, but to consider it in the light of the interest he has in the result of the verdict and in connection with all the other testimony in the case, and give it such weight as you think it is entitled to receive under the circumstances."
Let us divest this charge of its interpolations and see how it would read: The defendant is a competent witness in his own behalf — consider his testimony in the light of the interest he has in the result of the verdict to be rendered; i.e. that he is the defendant and may be convicted and sentenced to the penitentiary. The additional instruction that it was to be considered in connection with all the other evidence in the case and to give to it just such weight as you think it is entitled to receive under the circumstances, does not relieve the testimony of the discredit that has already been put upon it by the court, to whom the jury too frequently, perhaps, looks for intimations as to the guilt or innocence of defendants on trial. The vice of the charge lies in the fact that they are to consider the testimony in the light of the fact that the defendant has an interest in the result of the trial, based upon the evidence, which may deprive him of his political rights and incarcerate him in the penitentiary for a period of from 1 to 5 years. The judge trying this case has slightly changed the verbiage used in Green v. State, 19 Ala. App. 239, 96 So. 651, but the effect is the same. It has many times been held that the court is not in error when it charges the jury that the interest of the defendant in the result may be considered by them in weighing his testimony. 4 Mich. Digest, p. 395, par. 534 (2). But in many cases the appellate courts are equally positive to the conclusion that a charge which directs the jury to so consider defendant's testimony is error. The testimony of a defendant, when he elects to give evidence, should be considered and left to the jury, unembarrassed by direct or indirect instructions from the court bearing on its sufficiency. Norris v. State, 87 Ala. 85,6 So. 371; Descrippo v. State, 8 Ala. App. 85, 62 So. 1004; McKee v. State, 82 Ala. 32, 2 So. 451; Green v. State, 19 Ala. App. 239,96 So. 651; Tucker v. State, 167 Ala. 1, 52 So. 464; Roberson v. State, 175 Ala. 15, 57 So. 829; Adams v. State, 16 Ala. App. 93,75 So. 641. There are many other decisions to the same effect. All are to the effect that undue prominence should not be given to the fact that the testimony is that of the defendant.
Exception was taken to the following excerpt from the oral charge:
"If the jury find he is a man of good moral character, not as a fact by the testimony of one or two men, but that he is a man generally reputed to be a man of good moral character, then you may take that fact, if proven to your satisfaction, and consider the other evidence in the light of the fact he is a man of good moral character, and if, notwithstanding that fact, you are satisfied beyond a reasonable doubt that he is guilty, it would be your duty to convict."
This instruction was misleading; a fact may be established as firmly by the testimony of "one or two" men — as firmly as if testified to by an entire community. In the case at bar there were only two witnesses who testified to the good character of defendant. *Page 542 There were none who testified to the contrary. The defendant was entitled to have the testimony of these two witnesses considered by the jury, free from any unfavorable comments from the court.
The facts in this case render the refusal of written charge 1 free from error. Tatum v. State (Ala.App.) 100 So. 569;1 McKenzie v. State, 19 Ala. App. 319, 97 So. 155. Charge 2, being the affirmative charge as to count 2, and charge 9, being the general charge, were both properly refused. Charge 3 was fully covered by the oral charge. Charge 4 is not applicable in a case of this kind. Charge 6 is abstract. Charge 7 is argumentative and had a tendency to mislead. Charge 8, while a correct statement of the law, is abstract, as the evidence tending to prove the possession also tended to prove its illegal use.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
1 Ante, p. 24.