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On Rehearing.

“(6) The court charges the jury that if they 8. Criminal law Ow823(1)-Erroneous charge believe the testimony in this case the charnot oured by correct one.

acter of the witness Alma McNeal for truth An erroneous charge cannot be cured by and veracity is bad, and they must consider giving a correct one.

this fact in arriving at their verdict.

"(7) If the jury believe from the testimony On Hearing After Mandate from Supreme that the witness Alma McNeal is unworthy of Court.

belief, then they must acquit the defendant. 9. Criminal law 539(1)–Testimony of wit believe the evidence in this case that the char

“(8) The court charges the jury that if they nesses at preliminary trial erroneously re

acter of the witness Alma McNeal is bad and coived where witnesses present in court.

that her character for truth and veracity is It was reversible error to allow testimony bad, and if they believe the testimony, they of witnesses at preliminary trial to be intro- must consider these facts in weighing the credduced by state, where witnesses were present sibility of her evidence. in court and had testified.

“(9) The court charges the jury that before 10. Criminal law 539(1)–Testimony of they can convict the defendant they must be

witnesses on former trial admissible only in lieve from the evidence that the complaining case of necessity.

witness, Alma McNeal, is worthy of belief. Testimony of witnesses on former trial is you must believe from the testimony that Alma

"(10) Before you can convict the defendant, never admissible except in case of necessity, McNeal is worthy of belief, and I charge you, where witness is dead, incapacitated to testify, if you believe the evidence, that her character or his presence cannot be obtained.

is bad, and that her character for truth and 11. Witnesses 414(2)-Testimony at for- veracity are bad.”

mer trial not admissible to corroborate wit. "(14) If the jury believe from the testimony nesses,

that Alma McNeal consented that the defendTestimony of witnesses on former trial is ant at the time and place of the alleged asnot admissible to corroborate witnesses who sault could have sexual intercourse with her testified on trial.

at that time, then they must acquit the de

fendant. 12. Witnesses m414(2) - Witness not corroborated by proving that he made similar that Alma McNeal willfully and corruptly on

"(15) If the jury believe from the testimony statements prior to time of testifying. this trial swore falsely as to any material

It is not permissible to corroborate wit- fact, then they may reject her testimony alness by proving that he made similar state- together." ments prior to time of his testifying, or that he testified in same manner at previous trial.

These requested cbarges were given at de

fendant's request: Samford, J., dissenting in part.

“(6) If the jury are reasonably satisfied Appeal from Circuit Court, Houston Coun from the evidence that Alma McNeal willfully ty; H. A. Pearce, Judge.

and falsely swore as to any material fact in Leo Bush was convicted of an assault with regard her testimony entirely.

the case, then the jury are authorized to disintent to ravişh, and appeals. Reversed and

(7) The court charges the jury that if they remanded on rehearing.

are reasonably satisfied from the evidence that Certiorari granted by Supreme Court in Alma McNeal willfully and falsely swore as to Ex parte State, 100 South. 312.

any material fact in the case, then the jury Certiorari denied by Supreme Court in Ex are authorized to disregard her testimony enparte State, 100 South, 314.

tirely, and, if they do disregard her testimony

entirely, they should acquit the defendant." The following requested instructions were refused to defendant:

Lee & Tompkins and E. H. Hill, all of Do

than, and James J. Mayfield, of Montgomery, "(2) The court charges the jury that if they for appellant. believe that the witness Alma McNeal has

Harwell G. Davis, Atty. Gen., and O. S. willfully sworn falsely as to any material fact Lewis, of Dothan, for the State. in the case, that they may wholly disregard all of her testimony. "(3) If the jury believe that Alma McNeal

BRICKEN, P. J. This appellant, defendwillfully and corruptly swore falsely as to any ant in the court below, was charged by inmaterial fact, then they may disregard all of dictment with an assault to ravish Alma Mcher testimony.

Neal. He was convicted as charged and was “(4) The court charges the jury that if they duly sentenced to imprisonment in the penibelieve the testimony of the witnesses Ball, 0. tentiary for an indeterminate term of not L. Williams, and J. S. Dawsey, that they will less than four years or more than five years. wholly disregard all the testimony of the wit- From this judgment he appeals. ness Alma McNeal.

[1] Numerous exceptions were reserved to (5) The court charges the jury that if they believe the testimony in this case, the witness the rulings of of the court upon the admisAlma McNeal's character is bad, and they must sion and exclusion of evidence introduced or consider this fact in weighing the credibility offered in the progress of the trial of this case. of the testimony.

In every instance, however, the objection to

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Ala.)

BUSH v.
STATE

309 (100 So.) the testimony and the motion to exclude were, of the testimony, and is bad in other reof a general character, and as shown by the spects. Even if the witness Alma McNeal had record, in no instance in tbis connection were been successfully impeached, the court would any grounds assigned; not even the usual have no authority to instruct the jury as a general objection “because illegal, irrelevant, matter of law to wholly disregard all of the immaterial and inadmissible.” Here, the testimony of this witness. If said witness counsel merely "objected.” It follows there had been impeached, it was the duty of the fore that none of the rulings of the court up jury to weigh the evidence given by her in the on the testimony are presented in a manner light of that fact, and if after so weighing her authorizing a revision of the court's action in testimony, they arrived at the conclusion that making any of the rulings. Circuit Court | it was untrue, the jury in that event would Rule 33, Code 1907, p. 1527, provides!

have the right to disregard it. But under "When, in the progress of the trial of any

no circumstance would the court be authorcause in a court of original jurisdiction, objec-ized to charge the jury as a matter of law tion and exception are reserved to the intro- that they should wholly disregard the testi. duction of testimony that is not patently il-mony of this witness. Pentecost v. State, 107 legal, or irrelevant, such exception will not be Ala. 81, 93, 18 South. 146. The court's oral considered an error, unless the record shows charge in this connection was clear and exthat the grounds of objection were specified. plicit.

* And the 'appellate court, in revising such decision, must consider only the grounds 152 Ala. 49, 44 South. 535, refused charges 5,

[4] Under the authority of Worthy v. State, of objection which are shown to bave been 6, 8, 9, and 10 are bad as being invasive of clearly specified."

the province of the jury. See, also, Marasso [2] As provided in above rule, of course, if v. State, 18 Ala. App. 488, 93 South. 226; any of the testimony offered was manifestly, Rogers v. State, 16 Ala. App. 58, 75 South. or, as stated in the rule, patently illegal or 264. irrelevant, a formal general objection would [5] Charge 7 was properly refused; it suffice. But here, none of the evidence was singles out a part of the evidence, and is of this character, as under the theory of a invasive of the province of the jury. conspiracy as contended by state it was not [6] Charge 13 refused to defendant was manifestly illegal or irrelevant, and incapable fairly and substantially covered by the oral of being rendered admissible in connection charge of the court. with other evidence. Adams Hardware Co. [7] Refused charge 14 is wholly abstract, V. Wimbish, 201 Ala. 547, 78 South. 901, and there being no semblance of testimony showcases cited. See, also, Washington v. State, ing, or tending to show, consent by prosecut106 Ala. 58, 17 South. 546; Gunter v. State, ing witness Alma McNeal. 111 Ala. 23, 28, 20 South. 632, 56 Am. St. Charge 16 was fairly and substantially Rep. 17; Bates v. Morris, 101 Ala. 282, 13 covered by the oral charge of the court, and South. 138; Carroll v. State, 16 Ala. App. by given charge 7 requested by defendant. 454, 78 South. 717; Lundy v. State, 17 Ala. See, also, Koch V. State, 115 Ala. 99, 22 App. 454, 85 South. 819; Thomas v. State, South, 471. 139 Ala. 85, 36 South, 734. In Washington v. The oral charge of the court was an excel. State, supra, it was said:

lent exposition of the law applicable to the "The court is not bound to cast about for facts in this case. It was clear, able, forcethe grounds of the objection.

The ful, and fair; and the able counsel reprerule requires that the party appealing must senting this defendant reserved no exception affirmatively show error."

to any portion of the charge, nor did they Under the testimony in this case there is complain of this charge in any manner. We

are of the opinion that this defendant has no theory upon which the defendant was entitled to the general afirmative charge; that by no ruling of the court has his sub

been accorded a fair and impartial trial, and therefore the court properly refused to give stantial rights been injuriously affected. charge 1 requested by him.

The record is also free from error.

Let Charges 2, 3, and 15, refused to defendant, state a correct proposition of law, and the

the judgment appealed from stand affirmed.

Affirmed. appellate courts of this state have many times so declared. But error cannot be predicated

On Rehearing. here upon the refusal of these charges for the reason that given charges 6 and 7 fully Dhis case has received a very careful cover these charges. The refusal of a charge, consideration on application for rehearing. though a correct statement of the law, shall Special counsel for the prosecution has also not be cause for a reversal on appeal if it filed a brief in reply to the application for appears that the same rule of law was sub- rehearing which has received our careful stantially and fairly given to the jury in the consideration. court's general charge, or in charges given at

On the rehearing we have reached the the request of parties.

conclusion that there was error in the trial [3] Charge 4 was properly refused. It is court which necessitates a reversal of the objectionable in that it singles out a part judgment of conviction, and consequently

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of granting a rehearing and of modifying the could not be predicated upon the refusal of opinion of this case as follows:

those charges for the reason that the given We have reached the conclusion that the charges, 6 and 7, fully covered those charges. giving of charge 1 at the request of the state on further examination of the question was error to reverse. That charge reads as of authorities, we have reached the confollows:

clusion that the error in refusing these

charges was not cured by the giving of "If the jury are satisfied beyond a reason charges 6 and 7 or by the oral charge of the able doubt that defendant assaulted Alma Mc- court. It will be observed that each of these Neal, then the jury cannot acquit him.”

given charges required the jury to be "rea

sonably satisfied from the evidence.” This, The main error in this charge is that it of course, was a higher degree of proof than does not base or predicate a conviction upon is required in criminal cases. If the evia "belief of the evidence” by the jury beyond dence had generated a reasonable doubt in a reasonable doubt. Charges requesting a

the minds of the jury, it was the duty of conviction or acquittal must be based or the jury to give the defendant the benefit of predicated upon a belief of the evidence, and that doubt; and yet each of these charges in criminal cases, in order to convict, the required the jury to be reasonably satisfied jury must believe beyond a reasonable doubt from the evidence. Consequently, the error from the evidence in the case that the de- was not cured by the giving of charges which fendant is guilty. The belief or satisfaction required higher degree of proof. If the jury of the jury to support a conviction in a had a reasonable doubt as to whether or not criminal case must be based or predicated Alma McNeal swore falsely as to any maupon the evidence. The jury might be satis-terial facts on the trial of the case, then the fied of the guilt of defendant beyond a rea-jury had a right to disregard her testimony. sonable doubt, although the evidence in the The law did not require them to be reasoncase might show the defendant to be inno- ably satisfied that she had testified falsely. cent, or at least create a reasonable doubt in

In Conners' Case, 10 Ala. App. 209, 65 the minds of the jury as to his guilt. The South, 309, it was decided by this court that jurors might have personal knowledge of the a jury was not authorized to find a verdict guilt of the defendant, or they might be sat- of guilty on the testimony of a single witness isfied beyond a reasonable doubt from mere if the jury had a reasonable doubt of the rumors or gossip, yet such satisfaction would truth of his statement; and in Mills v. State, not justify a verdict of guilty. The oath of 1 Ala. App. 76, 55 South. 331, it was held the jury is to well and truly try the issue be that if the jury had a reasonable doubt as tween the state and the defendant and a true to the truthfulness of the evidence of the verdict render according to the evidence. state's witnesses, they could not convict on They are not authorized to render verdicts such evidence, although they might not beof guilty unless the evidence in the case sat-lieve the testimony of defendant's witnesses. isfies the jury beyond a reasonable doubt.

In the case of Barnett v. State, 83 Ala. Consequently, the charge was erroneous and 40, 3 South. 612, it was said by the Supreme could not be cured by the giving of other Court of this state that in prosecutions like charges predicated or conditioned on the ver- the one in question, the jury should be exdict upon the belief of the evidence beyond a ceedingly cautious how they convicted the reasonable doubt.

defendant on the uncorroborated testimony [8] An erroneous charge cannot be cured by of the prosecutrix, and especially where there giving a correct one. The jury would be left was evidence tending to impeach her crediin doubt as to which charge to follow—the bility, giving as a reason for such caution on correct or incorrect one. The error in refus- the part of the jury that it was an accusaing a correct charge may be cured by the tion easy to make, hard to be proved, and giving of other correct charges; but the giv, harder still to be defended by the party acing of an erroneous charge cannot be so cured cused, though ever so innocent. by the giving of court charges. The error of

We have also carefully examined the oral the giving of misleading charges may also be charge of the court to see if the error in recured by the giving of other charges, but fusing these charges was not corrected by not so as to the error in giving erroneous

the oral charge, and we have reached the charges. The repeated rulings of this court conclusion that this error was not corrected. have held that it was error to give charges, In fact, at page 46 of the transcript we find and not to refuse them, which fail to predi- that the trial court in its oral charge where cate or base the verdict of guilty or not ne sums up the law of the case and instructs guilty upon the evidence in the case. Davis

the jury says as follows: v. State, 188 Ala. 59, 66 South. 67; Edwards

“But after weighing and considering all the v. State, 205 Ala. 160, 87 South. 179. We decided on the original hearing that testimony in the case, if it is your fixed con

viction and judgment, givi:g to the testimony charges 2, 3, and 15, refused the defendant, of the state's witnesses and the defendant's state correct propositions of law, and that witnesses the weight and credit you deem it the appellate courts of this state had many entitled to, that the defendant is guilty of nei(100 So.) assault and battery, then in that event the ver- The charge in Davis' Case, 188 Ala. 59, 66 dict would be not guilty."

South. 67, and in Edwards Case, 205 Ala. 160,

87 South. 179, cited in Judge BRICKEN'S It will be observed that in this part of the opinion, were refused by the court. I have oral charge the court instructed the jury that also examined a large number of decisions they should have a fixed conviction and judg of this court and the Supreme Court, and in ment that the defendant was not guilty in each instance, where a charge was held bad order to return a verdict of not guilty. It is true that no objection or exception asked upon the evidence, the charges were

on account of omission to predicate the rule was taken to this part of the oral charge, and refused, and therefore never became a part we merely refer to it to show that the error of the court's oral charge, nor did they have in the refusal of the defendant's charges, the benefit of the announcement by the court, which we hold to be correct, was not cured

as was the case here: by the oral charge. A higher degree of proof was again required by the court in

"The written charges given you are not in order to support a verdict of not guilty.

conflict with the court's oral charge and are to As the case must be reversed and remand-be considered by you along with and as a part

of the court's oral charge." ed for another trial, it is unnecessary to treat specifically other questions which may not Second. I am still of the opinion that given arise and which were insisted upon in the ap charges 6 and 7 correctly state the law, and plication for rehearing. We deem it proper that the defendant had, in those charges, to say, however, that the testimony of the every benefit to which he was entitled. The witnesses on the preliminary trial should not jury has not the right to reject the testimony be introduced in evidence on the next trial of a witness, unless the jury is reasonably by the state if the witnesses are present and satisfied from the evidence that such witness testify on the trial. If, however, the defend. has intentionally and corruptly sworn falsely ant bad offered a part of that testimony, to a material fact in the case. The maxim of then, of course, the state would have a thị law, “falsum in puno, falsum in omnibus," right to introduce the whole; but unless the must be applied with great caution. Grimes defendant had offered a part of the testimony v. State, 63 Ala. 166. Every witness is prein evidence on the preliminary trial, it would sumed to testify truthfully, until the conbe error to allow the whole of the testimony trary be made to appear from the evidence, of these witnesses on the preliminary trial and then only when it is so ascertained from when they were present in court and could a consideration of evidence. Moore v. Jones, testify orally.

13 Ala. 296. It is the function of the jury It therefore results that the judgment of to weigh and determine, from the evidence, affirmance in this case must be set aside and as to whether a witness has willfully sworn one here entered reversing and remanding falsely to a material fact, and before they the cause for another trial.

can reject the testimony of a witness, their Reversed and remanded.

minds must be reasonably satisfied of that

fact. There is a distinction between, “if the SAMFORD, J. (dissenting). I cannot agree jury believe," and, “if the jury are reasonwith the position taken by BRICKEN, P. J., ably satisfied," as used in the charges under in his opinion on rehearing in the following consideration. "Belief” imparts a higher de particulars :

gree of proof that “reasonable satisfaction." First. I am of the opinion that charge 1 Therefore when the court gave, at the restates a correct proposition of law as based quest of defendant, in writing charges 6 and upon the evidence in this case, and that it 7, the ruling was favorable to defendant. is not subject to the criticism stated, that Third. I am also of the opinion that the it is not based upon a "belief of the evi- court did not commit reversible error in addence.” True, the charge as written and pre- mitting the testimony of Bob Strickland and sented to the court is not so hypothesized, James Mason, taken on the preliminary and, if the charge had been refused by the hearing of this case before the justice of the court, the criticism would have been cor- peace, and offered in evidence by the state. rect; but such was not the case. The court These witnesses were examined on cross-exgave the charge as requested, and thereby amination by defendant's counsel as to what not only inferentially, but in express terms, these witnesses testified on the preliminary adopted it as a part of the court's oral trial of this case, This was done in the charge, which several times stated and re- most minute manner, the examining counsel ferred to the evidence in the case. Nor does ostensibly reading the questions, from the the rule that the giving of a correct charge stenographic report of the preliminary trial. does not cure the error of giving an incor- In some instances the witnesses admitted, rect one apply here. The charge given be- and in some denied, having so testified. comes a part of the oral charge, based upon Where one party has brought out a part of the evidence in the case, and, when so taken a conversation or transaction, on the trial and considered, is cured of a defect in phrase- of a case, the other party is entitled to the ology which would have justified the court whole and to prove the entire conversation in refusing to make it a part of his charge. or transaction by the best available evidence.

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The stenographic report of a witness' testi- | Ala. 358. These cases either overruled or mony, when properly identified and attest- distinguished the cases holding to the coned, is the best evidence of what transpired trary, and this case does not fall within the on the examination. As was said in Ken- exception or the cases so distinguished. If nedy's Case, 85 Ala. 326–331, 5 South. 300, the defendant had offered any part of the 301 :

testimony of these witnesses on the former "The court did not err in refusing to allow trial in evidence, or if he had offered indehim to be cross-examined as to garbled ex- pendent proof as to what they testified on tracts taken from the writing, with a view of the former trial, then the state could have contradicting or impeaching him. The court introduced this testimony, not as independent properly required that the entire writing proof of the testimony of these two witnessshould be shown, or read to the witness, and es, nor in corroboration of what they testified go to the jury." Wills v. State, 74 Ala. 21; on this trial, but it could have introduced Gunter v. State, 83 Ala. 96, 3 South, 600.

the testimony for the purpose of having the The objection being general, if the testi- jury to ascertain whether or not the witness. mony was relevant for any purpose the ob- es had testified differently on the two trials; jection was properly overruled.

but the testimony would have had to be limit. I am of the opinion that this court reached ed for this purpose and could not have been a correct conclusion in atfirming the judg. introduced generally, as it was. As we have ment, and the application should be over- shown above, no one of the conditions author. ruled.

izing it to be introduced in evidence at all

existed. On Hearing After Mandate from Supreme

It therefore results that the judgment must Court.

be reversed, and the cause remanded.

Reversed and remanded. PER CURIAM. [9, 10] The application for certiorari having been granted in this case,

SAMFORD, J., dissents. and the decision of this court being reversed and the cause remanded for further consideration, this court, of course, will only consider the questions not heretofore decided by the court. It was suggested by this court in Ex parte STATE ex 'rel. ATTORNEY GENits former opinion that it was error to in

ERAL. troduce in evidence the testimony of two wit

BUSH v. STATE, nesses, James Mason and Bob Strickland, given on the preliminary trial of this case.

(4 Div. 109.) We declined to decide this question, for the reason that it might not arise on another (Supreme Court of Alabama. Dec. 13, 1923.

Rehearing Denied Jan. 31, 1924.) trial; the case being reversed on other grounds. But it now becomes necessary to 1. Criminal law Cin815(9)-Charge not to acdecide this question before the cause can be quit if jury satisfied that defendant assaulted finally affirmed or reversed. It is our opin- prosecutrix, not error. ion that it was reversible error for the trial Charge that if jury were satisfied beyond court to allow this testimony introduced in reasonable doubt that defendant assaulted evidence by the state. So far as the record prosecutrix, then they could not acquit, was shows, it was introduced as independent not erroneous because not requiring concluproof, notwithstanding both of the witnesses sion to be based on belief from evidence. were then present in court and had testified. 2. Criminal law aw 815(10)-Requested inThe law is well settled that testimony of wit. struction not hypothesizing jury's belief as nesses on a former trial is never admissible from evidence properly refused. except in case of necessity, where the witness In prosecution for assault with intent to is dead, incapacitated to testify, or his pres- ravish, it was not error to refuse defendant's ence cannot be obtained. Kirkland v. State, requested instructions that, if jury believed 141 Ala. 45, 37 South. 352; Pate v. State, 158 that prosecutrix had willfully sworn falsely as

to any material fact in the case, then jury Ala. 1, 48 South. 388. [11, 12] It is equally well settled that such did not hypothesize jury's belief as from evi

could disregard all her testimony, since charges testimony is not admissible to corroborate

dence. witnesses who testified on the trial. It is never permissible to corroborate witness by 3. Criminal law Ow829(16)-Charge that, if proving that he made similar statements

jury believed that prosecutrix swore falsely,

they might rejeot testimony, properly refused prior to the time of his testifying, or that

in view of charges given; "belief.” he testified in the same manner on a pre

Where jury was instructed that if they vious 'trial. See Long v. Whit, 197 Ala. 271, 72 South. 529; Jones v. State, 107 Ala. 36, prosecutrix willfully and falsely swore as to

were reasonably satisfied from evidence that 18 South, 237; McKelton v. State, 86 Ala. (material facts, then they were authorized to 594, 6 South, 301; Nichols v. Stewart, 20 l disregard her testimony, it was not error to

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