Lacy v. State

THOMAS, J.

All questions raised as to the insufficiency of the indictment were, it is conceded by appellant’s counsel, determined adversely to this same appellant on his appeal in a companion case, wherein the indictment contained counts framed practically the same as here, and which were demurred to on grounds likewise practically the same as here. In holding, therefore, that the court did not err in overruling the demurrers, it is unnecessary to indulge in any discussion of the counts now attacked or of the demurrers attacking them, but it will be sufficient to cite, which we do, the case referred to, wherein our views as to these matters are fully expressed.—Theo. Lacy v. State, infra, 68 South. 706.

(1) The record discloses that the defendant pleaded the general issue and a number of special pleas of former jeopardy, upon which issue was joined by the state and a separate verdict returned against defendant, who declined in open court to offer any evidence in support of said pleas. No demurrers were filed to any of said pleas, but the judgment entry recites that the solicitor made a motion to strike certain portions of these pleas, which motion was granted. Whether the court erred in doing so we are unable to determine, since neither the record proper nor the bill of exceptions sets out said motion nor discloses what portion of the pleas it sought to strike or what portion the court, in fact, struck.

(2) Complaint is also made as to the action of the trial court in declining to enforce an alleged agreeement of the solicitor to nol. pros, the case. No nol. pros, can be taken without the consent of the trial court (Code, § 7159), and as to whether it should or not give such consent is a matter resting within its sound discretion, which cannot be reviewed.

(3) The defendant introduced no evidence whatsoever. The evidence for the state was, consequently, undisputed ; and it — the legal evidence — being, as it was sufficient, if believed, to exclude beyond a reasonable doubt every rational hypothesis except that of defendant’s guilt, and there being nothing, so far as appears, to cast any discredit whatever upon it, we would not feel justified under the new rule of our Supreme Court-(rule 45, as published in 175 Ala. xxi, 61 South, ix) in reversing the judgment of conviction, even if we were of opinion that the court erred in some of its rulings in not sustaining objections interposed by defendant to some of the'questions asked some of the state’s witnesses by the solicitor and to some of their answers thereto; We cannot say, as we are required to say by tbe new rule as a condition to a reversal, that either of these rulings, if error, “has probably injuriously affected substantial rights” of the defendant; hence we deem it unnecessary to discuss the several rulings of the court on the evidence as are complained of, especially since they present no questions either new or novel, and have received only scant attention in appellant’s brief.

We will pass, therefore, to a consideration of the refused charges, confining our discussion, however, to those only of these charges that are insisted upon in brief, to wit, charges numbered 21, 22, 28, Z E, Z H, M C, and XIZ, contenting ourselves with saying as to the others — those not so insisted upon — that they are so clearly without merit as not to require discussion to demonstrate that fact-

(4) The last sentence in charge 21, to the effect that the verdict of the jury “must be based on the evidence introduced in the case, and not on guesses, speculations, or suppositions,” as well as the former sentence that the jury cannot supply defects in the evidence “by guessing what the truth is,” renders the charge bad as being argumentative and as tending to mislead the jury into believing that the court entertained the idea that the evidence was not sufficient to sustain a conviction.—Brown v. State, 142 Ala. 287, 38 South. 268; Brown v. State, 150 Ala. 25, 43 South. 194; 1 Mayf. Dig. 173; 5 Mayf. Dig. 127; 6 Mayf. Dig. 111.

Charge 22 was objectionable for the same reason, containing, as it did, a statement that the defendant “must be tried on the evidence, and on the evidence alone, and that unless the evidence, and the evidence alone, satisfies this jury,” etc., then defendant cannot be convicted. The same may be said of charge M C, which asserts that “the defendant should not be tried on suspicion or suppositions, but on the evidence, and the evidence alone, and that unless the evidence alone” convinced the jury of defendant’s guilt, etc., he should be acquitted.

(5) Assuming the correctness of charge 23, no reversal can follow for its refusal, because the only propositions asserted in the charge, to wit, the legal presumption of defendant’s innocence, and the necessity for unanimity of belief on the part of the jury as to defendant’s guilt, and the degree of proof required, are fully covered by given charges 25 and 27.—Davis v. State, 8 Ala. App. 147, 62 South. 1027.

(6) Charge Z E was properly refused in the light of the evidence tending to connect Oakley as an accomplice in the commission of the effense and in the light of the charge embraced in counts 1, 7, 8, and 9 of the indictment. For the same reason, charge X Y Z was properly refused.

(7) Charge Z H, if not otherwise faulty, was so, as being abstract.

We find no reversible error in the record, and the judgment of conviction is affirmed.

Affirmed.

Pelham, P. J. not sitting.