In his brief in support of the application for rehearing, counsel for appellant states that we made no specific reference to the refusal of appellant's requested charges I-3 and E-1. The principles sought to be covered by these charges, so far as they could be applicable to the issues raised in the trial below, were in our opinion fully covered in the court's oral charge, or the charges given at appellant's request.
These charges furthermore were faulty in one or more specific aspects.
Charge E-1 is misleading and argumentative as applied to the issues raised in the trial below. This requested charge reads:
"The Court charges the Jury that the humane provisions of the law is that upon the evidence there should not be a conviction, unless to a moral certainty, it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused it not shown by that full measure of proof the law requires."
The fact that the car in question was stolen was established without contradiction. The theory upon which the prosecution proceeded was that this appellant was in possession of recently stolen goods. That some other person stole the car was an immaterial matter. The appellant's explanation of his possession of the recently stolen automobile was the real issue, and the worth of this explanation was for the jury.
Refused Charge I-3 was as follows:
"I charge you that the evidence in this case is partly circumstantial, and before you would be authorized to convict the defendant the evidence must be so cogent as to exclude every reasonable hypothesis except that of guilt, and if you are not so convinced, then you should acquit the defendant."
Counsel in his argument that refusal of this charge was error relies upon Gilmore v. State, 99 Ala. 154, 13 So. 536, and Wiggins v. State, 25 Ala. App. 192, 143 So. 188, wherein it was held that the refusal of such charge was error.
However, the Gilmore case, supra, was a prosecution for burglary, and the Wiggins case, supra, concerned a charge of homicide.
Counsel argues that possession of recently stolen goods, in a prosecution for larceny of the goods, is merely a circumstance tending to establish guilt, and therefore the guilt of the accused under such evidence results from circumstantial evidence. This argument, as far as it goes, appears to be a correct statement of the law.
However, as stated in 32 Am.Jur., Larceny, Sec. 154: *Page 460
"But the rule is universal that where an appellant testifies and admits the possession of stolen property, but claims his possession thereof was obtained in such manner as not to constitute theft, the case is not one of circumstantial evidence, except in cases where he claims the property as his own and there is no evidence not circumstantial which connects him with the original taking."
Clearly Charge I-3 was refused without error.
Other matters are argued in brief in support of appellant's application for rehearing. We think such were sufficiently covered in our original opinion.
Application overruled.