The defendant was indicted for the murder of Collin McCampbell, whose dead body was found on about December 12, 1915, in Jones creek bottom in a dense thicket of trees, bushes, vines, and weeds, between Richard City and Bridgeport, Ala., and about 300 yards west of the tracks of the Nashville, Chattanooga St. Louis Railway, and about one-half mile from Richard City. The body, when discovered, was badly decomposed, and the head was detached. The hat of the deceased was found near the body, and where the band encircled the hat, there was a hole through the band and the hat. There was also a hole in the back of the skull of the deceased, and inside of the skull was discovered a part of the hat band and about a teaspoonful of small shot.
According to the evidence of the state, the deceased was last seen alive on September 1, 1915, and was then walking down the railroad track leading from Richard City to Bridgeport, Ala., and going in the direction of Bridgeport, and within a very short time thereafter, the defendant was seen going in a fast walk in the same direction with a gun. It was also shown that the deceased had money on deposit with the First National Bank of South Pittsburg, Tenn., at the time of his death, and that he very frequently drew checks against this deposit. Evidence was also offered tending to show that the defendant, on August 18 and 21, 1915, presented to the bank checks to which the deceased's name was forged, the first of which was payable to the defendant, and the other to one Brown, and that these checks were indorsed by the defendant and paid to him by the bank.
There was no positive evidence as to the exact time the deceased was killed, and the testimony of the witness Griffith, who was shown to be the cashier of the bank at South Pittsburg, that the last check issued by the deceased on the bank was on August 30th, and that it was paid September 3d, was relevant, and in connection with the other evidence, tended to show that deceased was killed on or about September 1, 1915, and was properly admitted. The evidence that there was a balance in bank to the credit of the deceased was also relevant for the same reason. Of course, if there was no balance to his credit, the fact that he frequently drew checks on this account, and that the last check so drawn was drawn on August 30th, would have no tendency to prove the time he was killed, as the presumption would prevail that he would not violate the law by drawing a check in the absence of funds on deposit to pay it.
The general objection that the testimony *Page 176 of the witness Ladd, to the effect that one Hennessy said to defendant, "Well, Ty, if you would tell where Collin [referring to deceased] is, I believe they would turn you loose on this forgery business," was "illegal," was properly overruled. The objection was interposed after the witness had made the statement. The reply of the defendant to this question, that he knew where the deceased was, but was not going to tell, and to which no objection was made, made the statement of Hennessy competent, as giving color and meaning to the defendant's response.
Defendant's special charge 1 was properly refused. The law does not require that the evidence should show the defendant's guilt with "unerring certainty," but only beyond all reasonable doubt.
Charges 2 and 5 were properly refused, as invasive of the province of the jury.
Charges 3, 6, and 7 were properly refused as argumentative.
The evidence was not positive as to when the deceased came to his death, and the refusal of charges 2, 4, and 6 may be justified on the theory that they were invasive of the province of the jury. Charge 4 was, however, substantially the same as given charge 1. Charges 4 and 7 were also subject to the vice of giving undue prominence to certain portions of the evidence. B. R., L. P. Co. v. Donaldson, 14 Ala. App. 160, 68 So. 596; Bullington v. State, 13 Ala. App. 61, 69 So. 319; Brand v. State, 13 Ala. App. 390, 69 So. 379.
There is no error in the record, and the judgment is affirmed.
Affirmed.