There were demurrers filed to both counts of the indictment, assigning 29 grounds, but this court has already many times held that indictments similar to the one in this case are not subject to demurrer. Barnes v. State, 18 Ala. App. 344,92 So. 15; Taylor v. State, 17 Ala. App. 579, 88 So. 205; Reese v. State, 18 Ala. App. 357, 92 So. 77; Holloway v. State, 18 Ala. App. 392, 92 So. 78; Layman v. State, 18 Ala. App. 441,93 So. 66.
Charge 3 was properly refused. It is not that a witness swears falsely that authorizes the jury to reject his testimony; it must be willfully or intentionally false.
Charge 2 is incomplete.
Charge 5 was covered by the court in his oral charge.
Charge 8 was bad, in that it assumed a premise which did not exist in the evidence. The guilt of defendant did not depend upon the testimony of John Staffney. Eliminating this testimony entirely from the case, still there was evidence from which the jury could have arrived at a verdict of guilt.
Charge 14 omits a consideration of all the evidence and was properly refused.
Charge 17 asserts a correct proposition of law, as has been many times held by this court and the Supreme Court, and should have been given. Bryant v. State, 116 Ala. 446, 23 So. 40; Prater v. State, 107 Ala. 27, 18 So. 238; Cannon v. State,17 Ala. App. 82, 8 So. 860. It is true the court in his oral charge had instructed the jury correctly on the general law of reasonable doubt and had given several written charges defining in general terms a reasonable doubt, but none of these charges given by the court were in the language of, or substantially covered the phase of, the evidence sought to be impressed upon the jury by this charge refused by the court. Charges moved for be either party must be in writing and must be given or refused in the terms in which they are written. Code 1907, § 5364. But mere repetition need not be given. Smith v. State, 92 Ala. 30,9 So. 408. It is now fixed by law (Acts 1915, p. 815), that —
"The refusal of a charge though a correct statement of the law shall not be cause for reversal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge or in charges given at the request of parties."
But, it cannot be said that the rule as announced in this charge had been substantially and fairly given, where the charges given were in general terms and based upon general principles, and the charge refused was framed so as to embrace a correct principle as applied to a particular phase of the evidence in the case then on trial.
Charge 23 also asserts a correct proposition, and was not substantially and fairly given by the court either in his oral charge or in written charges requested by defendant. The evidence in this case is largely circumstantial, and where this is the case the humane provision of the law is that defendant should not be convicted if the jury can reconcile the evidence consistent with the theory that some other person may have done the act. James v. State, 18 Ala. App. 236, 89 So. 864; Pickens v. State, 115 Ala. 42, 22 So. 551.
Under the evidence in this case the defendant was not entitled to the general charge as to either count of the indictment. We do not enter into a discussion of the evidence as shown by the record, as no good purpose could be served thereby.
Charge D was substantially covered by the oral charge of the court and the written charges.
Charge G was properly refused. Neither the jury as a whole nor the jurors singly are entitled to have their own conception of what constitutes a reasonable doubt of the guilt of the defendant, independently of the law as defined to them by the court. The court defines the law of reasonable doubt and the jury applies the facts. While the principles announced in this charge are substantially held to be correct in Doty's Case,9 Ala. App. 21, 64 So. 170, as here framed it must be held to be misleading and properly refused.
The questions raised on the evidence will probably not arise on the evidence on another trial.
For the errors pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded. *Page 322