The judgment of conviction in this case is now reversed by my associates upon two grounds: First, the refusal by the trial court to give at appellant's request written charge No. 24; and, second, the admission in evidence over appellant's objection, of the testimony of Joe Watts — identified (by error, I assume), in the record before us, as a witness "on behalf of the defendant" — as to a telegram he (Watts) claimed he sent to Joe Percy Bragg.
As to the first ground of reversal I am impressed that the charge, as drawn, was at least confusing to the jury — and hence, for that reason, properly refused. It seems to me that the charge, quoted in full in the majority opinion (after remandment), would forbid a conviction of appellant if the jury had a "reasonable doubt as to the truth of the testimony of the witness Joe Percy Bragg" as to any, the most immaterial, detail of the occurrences narrated by him. And this while the jury may have had no reasonable doubt as to the truth of the testimony of the witness as to the material matters contained in his testimony. This, I think, is not the law.
But aside from the above I am convinced that no harm was worked to appellant by the refusal of the charge in question. The trial court gave at appellant's request the following written charges, to wit:
"8. The court charges the jury that if the jury, after considering all the evidence, has a reasonable doubt about the defendant's guilt, arising from any part of the evidence or arising from the lack of evidence, then you should find him not guilty."
"11. The court charges the jury that if the evidence, or any part thereof, after a consideration of the whole evidence, generates a well founded doubt of the defendant's guilt, the jury must acquit him. *Page 432
"12. The court charges the jury that if the evidence is not so convincing as to lead the minds of the jury to a conclusion that the defendant is guilty, they must find him not guilty.
"13. The court charges the jury that unless each of them is convinced beyond a reasonable doubt of the guilt of the defendant from the evidence in the case, then they should not convict him.
"14. The court charges the jury that the defendant cannot be convicted in this case unless each and every member of this jury is not only satisfied from the evidence of the defendant's guilt, but is satisfied from the evidence, and the evidence alone, beyond all reasonable doubt and to a moral certainty, of his guilt.
"15. The court charges the jury that if after looking at all the evidence in this case and considering it fully, your minds are left in such a state of uncertainty that you cannot say beyond a reasonable doubt that the defendant is guilty of the offense charged, then this is such a doubt as would entitle defendant to an acquittal and you should so find."
"17. The court charges the jury that a reasonable doubt may arise, though there is no probability of the defendant's innocence from the testimony, and if the jury has not an abiding conviction to a moral certainty of his guilt, then they should find him not guilty."
"19. The court charges the jury that in weighing the evidence, each piece and all the evidence should be weighed with all the other evidence and you should make up your verdict from a due consideration of the whole evidence. If the jury, after considering all the evidence, has a reasonable doubt of defendant's guilt, arising out of any part of the evidence, they should find him not guilty."
"30. The court charges the jury that as fair-minded and honest men the law enjoins upon you the imperative duty of giving the defendant the benefit of every reasonable doubt arising from the evidence, before you can find him guilty."
"38. The court charges the jury that if they do not believe the evidence of the witness Joe Percy Bragg, and if they further find that there is no other evidence in the case connecting the defendant with the crime charged, then the defendant cannot be convicted."
"42. The court charges the jury that if you believe from the evidence in this case that the witness Joe Percy Bragg has willfully and corruptly sworn falsely as to any material fact in this case, you may, in your discretion, disregard his entire testimony and give it no weight or credence whatever."
Beside other written charges of the same general import as those quoted, which the court gave, at appellant's request, the learned trial judge in his oral charge to the jury used this language, to wit:
"Now, gentlemen, this defendant, just as every other defendant who comes into court charged with a criminal offense, is presumed by law to be innocent, and that presumption of innocence attends him, as a matter of evidence, during the course and progress of the trial, until such time when the jury is convinced beyond a reasonable doubt of his guilt. * * *
"Likewise, gentlemen, in this case, as in all other criminal cases, the burden of proof is on the state, and that burden of proof is to produce evidence to the jury which convinces you beyond a reasonable doubt of the defendant's guilt. * * *
"If after considering all the evidence in the case you have a reasonable doubt growing out of any part of the evidence, after you have considered that part along with all the other evidence in the case, and you have that reasonable doubt, then the law says it is your duty to give the defendant the benefit of that reasonable doubt and in that event it would be your duty to find him not guilty."
Under these circumstances, it seems to me the written charge 24 may well have been refused as having been already covered (in legal principle and effect) by charges — oral or written — given to the jury. Code 1923, § 9509.
If indeed it is true (which I do not deny), as asserted by my associates, that, "Without the testimony of the witness, Bragg (Joe Percy Bragg), there was no testimony in the case which would have authorized a conviction and therefore the onequestion presented and the contention of the parties in the court below was as to the truthfulness of this evidence whichalone connected this defendant with the crime charged" (italics mine), then how, in the name of justice, could the jury ever become convinced. "beyond a reasonable doubt of the guilt of appellant," so long as they had a "reasonable doubt of the truth of the testimony of Joe Percy Bragg" (as to *Page 433 the material circumstances of the case)? It just seems to me but a useless superfluity for the trial judge to have given this written charge 24. So much for that.
Now as for the admission of the testimony with reference to the telegram, it plainly appears that this testimony was brought into the case by the appellant, on his cross-examination of the witness Joe Percy Bragg. Surely the judgment of conviction should not be reversed because the state was then allowed to develop, fully, the circumstances surrounding the sending and receipt of the telegram. And this, even though it be conceded that all the testimony in this regard was immaterial. Murphy v. State, 14 Ala. App. 78,71 So. 967, and cases cited in the opinion in said case.
Of course, I apprehend it would be but a "wail in the dark" for me to assert, as I do, that it is clear to me that the admission of this testimony in no way worked any injury to appellant. If, as a fact, or as law, it was error to admit it, our Supreme Court, under its consistent rulings, would not review the opinion of a majority of this court that its admission was prejudicial to appellant. So much for that.
I am persuaded the judgment of conviction in this case should be, as for any prejudicial error having been committed in its trial below, affirmed.
And I yet dissent.