cases.

(100 So.) refuse charges that, if jury believed from tes- , wards v. State, 205 Ala. 160, 87 South, 179), timony that prosecutrix swore falsely as to but reasons why error should not be predimaterial fact, they could reject her testimony cated of the giving of such charges, when in altogether; "belief” expressing a deeper degree other respects they state the law of the case of conviction than "reasonably satisfied."

correctly, were stated by Stone, C. J., in [Ed. Note. For other definitions, see Words Hall v. Posey, 79 Ala. 84, and that decision and Phrases, First and Second Series, Belief.) has been consistently followed in subsequent Certiorari to Court of Appeals.

Mansfield v. Morgan, 140 Ala. 567, 37 Leo Bush was convicted of an offense and 37 South. 789; Duncan v. St. L. & San F.,

South. 393; Davis v. Kornman, 141 Ala. 479, appealed to the Court of Appeals; and, the 152 Ala. 133, 44 South. 418; State v. Brintle, judgment being reversed, the State, on the 207 Ala. 500, 93 South. 429; Clayton v. Jorrelation of its Attorney General, petitions dan, 209 Ala. 334, 96 South. 260. And there for certiorari to the Court of Appeals to re is no reason why this rule should not apply view and revise the judgment and decision in criminal as in civil causes. there, rendered in the case styled Bush v.

[2, 3] Error, in the opinion of the Court of State, 100 South. 307. Writ granted.

Appeals, is also predicated of the trial court's See, also, 100 South. 314.

refusal of charges 2, 3, and 15, requested by Charge 1, given at the request of the state, defendant. We assume that there was a is as follows:

phase of the evidence calling for a correct “(1) If the jury are satisfied beyond a rea

statement to the jury of the general rule of .sonable doubt that defendant assaulted Alma law embodied in these charges, for similar McNeal, then the jury cannot acquit him." charges were given in the trial court, and

otherwise the question as to the charges now Charges 2, 3, and 15, refused to defendant, under discussion would have been dismissed are as follows:

from consideration as abstract. On the au“(2) The court charges the jury that if they thority cited first above, error cannot be believe that the witness Alma McNeal bas will. predicated of the refusal of charges 2 and 3, fully sworn falsely as to any material fact in for they do not hypothesize the jury's belief the case, that they may wholly disregard all

as "from the evidence." But the refusal of of her testimony.

“(3) If the jury believe that Alma McNeal charge 15 raises a different question, for willfully and corruptly swore falsely as to any

the hypothesis there is that "the jury believe material fact, then they may disregard all her from the testimony,” etc. The legal proposi. testimony."

tion sought to be stated in this charge is "(15) If the jury believe from the testimony | usually predicated of a "finding" by the that Alma McNeal willfuly and corruptly on jury, and in that form this court has frethis trial swore falsely as to any material fact, quently said that it should be given in cases then they may reject her testimony altogether." calling for its application. By it the jury

Charges 6 and 7, given for defendant, are instructed, not that they must disreread:

gard the whole testimony of the witness in

the event hypothesized, but only that they “(6) The court charges the jury that if they are reasonably satisfied from the evidence that may do so-have the legal right to do so. Alma McNeal willfully and falsely swore as to

McClellan v. State, 117 Ala. 140, 23 South. any material facts in the case, then the jury 653; A. G. S. R. R. v. Frazier, 93 Ala. 45, 9 are authorized to disregard her testimony en South. 303, 30 Am. St. Rep. 28; Jordan v. tirely, they should acquit the defendant." State, 81 Ala. 20, 1 South. 577; Childs v.

“(7) If the jury are reasonably satisfied from State, 76 Ala. 93. Other cases to the same the evidence that Alma McNeal willfully and effect might be cited. But our judgment is falsely swore as to any material fact in the that in charges 6 and 7, given to the jury at case, then the jury are authorized to disregard his request, defendant had the benefit of the her testimony entirely."

general proposition involved in a form more Harwell G. Davis, Atty. Gen., and Oscar favorable to his cause, and has now no just S. Lewis, of Dothan, for petitioner.

ground of complaint. "Believe," the term Lee & Tompkins, of Dothan, and James J. used in the refused charge, is stronger, exMayfield, of Montgomery, opposed.

presses a deeper degree of conviction, than

the phrase "reasonably satisfied,” employed SAYRE, J. [1] In its opinion on applica- in the charges given. Farmers' & Merchants' tion for rehearing the Court of Appeals Bank v. Hollind, 200 Ala. 371, 76 South. 287. held the giving of charge 1 at the request of Defendant may have been willing to have the the state was error to reverse—this upon proposition stated in terms less favorable the ground that the charge fails to base or than his due; but it was no business of the hypothesize the jury's conclusion upon be-trial court to give in charge to the jury any lief “from the evidence.” We have hereto- instruction except in the correct and approfore decided that trial courts may without priate terms of the law. error refuse such charges (Davis v. State, The conclusion is that the Court of Ap188 Ala. 59, 66 South. 67, referred to in Ed-peals erred in its consideration of the charge es under discussion, and that, as for any Harwell G. Davis, Atty. Gen., for the question made upon these charges, the judg- State. ment of the trial court should have been affirmed.

SAMFORD, J. The evidence in this case Writ granted; judgment of the Court of is entirely circumstantial. As circumstances Appeals reversed, and cause remanded to tending to prove the guilt of defendant and that court for further proceedings in accord connecting him with the liquor, it was releance with this opinion.

vant and competent to prove that defendant All the Justices concur.

was traveling in a Ford car; that when he was told by the officer to halt he "swerved around the officer" and speeded up the car; that the officer pursued the car; that the

officer caught defendant in the car after & Ex parte STATE ex rel. Attorney General. chase of about seven miles near a cemetery;

that the defendant "was drinking"; that at BUSH V. STATE.

that time the officer smelled whisky on de (4 Div. 135.)

fendant and in the car; that under the

front cushion of the car there were cobs (Supreme Court of Alabama. May 29, 1924.) broken up about an inch and one-half long; Certiorari to Court of Appeals.

that defendant was running the car as fast Harwell G. Davis, Atty. Gen., and O. S. Lew the officer went back to where he first saw.

as it would go; that shortly after the arrest is, of Dothan, for petitioner.

Lee & Tompkins, of Dothan, and James J. defendant and picked up a Coca-Cola bottle Mayfield, of Montgomery, opposed.

and a pint bottle; that in the pint bottle

there was a little corn whisky; that these PER CURIAM, Leo Bush was convicted of bottles were in the edge of the road where an offense and appealed to the Court of Ap- defendant had passed; that it was about peals; and the judgment of conviction being

one hour from the time defendant had reversed, the state, on the relation of its Attorney General, petitions for certiorari to the passed; that further down the road where Court of Appeals to review and revise the defendant had passed the officer found a judgment and decision there rendered in the board carton with excelsior in it; that it case styled Bush v. State, 100 South. 307. had on the carton the name of a man who Writ denied.

lived near defendant; that this was about 9 ANDERSON, C. J., and SAYRE, GARD. p. m.; that the next morning about daylight NER, and MILLER, JJ., concur.

the officer examined the road where defendSee, also, 100 South. 312.

ant had been along the night before; that there was no other sign of travel except the car of defendant; that on the route taken by defendant's car the night before the off

cer found a quart bottle of whisky "hung up HILL V. STATE, (5 Div. 438.)

in a thick briar patch," which had a cob

stopper; that just a little below this on the (Court of Appeals of Alabama. Feb. 5, 1924. edge of the same road he found a quart bot

Rehearing Denied April 8, 1924.) tle broken, and near it a cob stopper that Criminal law w 351(3)-Ċircumstantial evi- fitted the bottle; that another quart bottle

dence as to defendant's flight and articles was found on the road, thrown right on the discarded by him held competent.

bank on the right side, with a cob stopper; In prosecution for possession of prohibited that the whisky was what is known as corn liquors, evidence that defendant, when ordered whisky; that the officer was familiar with by officer to halt, speeded up car, and was and knew the smell of corn whisky; that caught only after chase of several miles, and as the car smelled of corn whisky. Many ques. to articles found in car and along road after de- tions bringing out the foregoing evidence fendant's fight, held competent.

were objected to, motions were made to exAppeal from Circuit Court, Tallapoosa clude the answers, and exceptions were reCounty; S. L. Brewer, Judge.

served. The case made by the state to esBud Hill was convicted of having in his circumstantial, and the foregoing were all

tablish the guilt of defendant was entirely possession prohibited liquors, and appeals. admissible as circumstances tending to conAffirmed.

nect the defendant with the offense charged. Certiorari denied by Supreme Court in Ex The court did not err in any of its rulings. parte Hill, 100 South. 315.

We find no error in the record, and the Jas. W. Strother, of Dadeville, for appel- judgment is affirmed. lant.

Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Nuwvered Digests and Indexes

(100 So.) Ex parte HILL

Since there was no specific discussion of

the charge, it should be said charges invoking HILL V. STATE.

like principles of law of circumstantial evi. (5 Div. 892.)

dence have been considered.

The rulings of the Court of Appeals on the (Supreme Court of Alabama. May 22, 1924.) subject when considered are not inconsistent. 1. Criminal law Ow814(2)—Showing necessary See Gunn v. State, 7 Ala. App. 132, 61 South. to warrant instruction that possible guilt of 468; Wilson v. State, 7 Ala. App. 134, 61 another is sufficient to constitute reasonable South. 471; Minor v. State, 15 Ala. App. doubt of defendant's guilt stated.

556, 74 South. 98; Newell v. State, 16 Ala. Instruction that the fact that circumstan- App. 77, 75 South. 625; Machem v. State, tial evidence solely relied upon by state indi- 16 Ala. App. 170, 76 South: 407; Jones v. cates another than defendant may be guilty State, 18 Ala. App. 116, 90 South. 135. It is sufficient to create a reasonable doubt is should be noted, however, that these cases last improper, except where there is evidence in- cited had no specific charge for consideration, dicating the guilt of another person or persons than defendant, or if the offense is of such na

as was instant charge 1. In the Jones Case, ture that both defendant and another may have supra, the approval was of the oral charge been guilty of its commission, and when given declaring that the test is "not that the in proper case the theory hypothesized should circumstances be as strong as the testimony be a reasonable theory supported by and re- of one or more eyewitnesses, but the test ferred to the evidence.

is, Do the circumstances produce a convic2. Criminal law Cm814(3)-Instruction to find tion of guilt in the minds of the jury to a

defendant not guilty if circumstantial evidence moral certainty ?” The general statement of indicated possible guilt of another held prop- law that follows cannot be said to authorize erly denied.

the giving by the trial court of the charge In prosecution for possession of prohibited under discussion. However this may be, the liquor, instruction that if the evidence is cir- Newell and Jones Cases do not appear to cumstantial or partly circumstantial, and if the have had the consideration of this court on circumstances are such that another than de

certiorari. The Bryant Case, 13 Ala. App. fendant may be guilty, then the jury should 206, 68 South. 704, said of the charge that adopt the theory which leads to the belief that defendant is not guilty, held properly denied if not otherwise faulty" it "ignored conwhere evidence did not indicate another's guilt, sideration of the evidence,” etc. Thus the and the theory hypothesized was not reasonable. decisions of the Court of Appeals are recon

cilable.

In Chisolm v. State, 45 Ala. 66, it is said Certiorari to Court of Appeals.

of the sufficiency of circumstantial evidence Petition of Bud Hill for certiorari to the that it should be “such as to exclude a raCourt of Appeals to review and revise the tional probability of innocence" of the dejudgment and decision there rendered in the fendant. In Salm v. State, 89 Ala. 56, 58, case of Hill v. State, 100 South. 314. Writ 8 South. 66, charge 20, on circumstantial evidenied.

dence, that was approved, asserted the propCharge 1, refused to defendant, is as folosition thatlows:

"The evidence must be strong and cogent; “(1) I charge you, gentlemen of the jury, and unless it is so strong and cogent as to that, if the evidence is circumstantial or partly show the defendant's guilt to a moral certainty, circumstantial, and if the circumstances are the jury must find him not guilty.” (Italics such as that some person other than the defend- supplied.) ant may have committed the offense, if any was committed, then you should adopt the the- In Ex parte Acree, 63 Ala. 234, it is deory which leads to the belief that the defendant clared that, where the evidence was circumis not guilty."

stantial, the defendant should not be con

victed on such evidence "unless it shows by a Jas. W. Strother, of Dadeville, for peti

full measure of proof that the defendant is tioner.

guilty"; such proof is insufficient "unless it Harwell G. Davis, Atty. Gen., opposed.

excludes, to a moral certainty, every other

reasonable hypothesis, but that of the guilt of THOMAS, J. After a discussion of rulings the accused"; and “no matter how strong on the introduction of evidence, the further the circumstances, if they can be reconciled announcement of the Court of Appeals that with the theory that some other person may "the court did not err in any of its rulings" have done the act, then the defendant is not embraced the refusal of defendant's charge shown to be guilty, by that full measure of 1. It is unnecessary to refer the same to the proof," etc. (Italics supplied.) Court of Appeals for further treatment. A charge couched in the general statement Having ruled thereon, a case within Ex of law to be found in Ex parte Acree, supra, parte Cowart, 201 Ala. 55, 77 South. 349, is was approved in Gilmore v. 'State, 99 Ala. not presented.

| 154, 157, 160, 13 South, 536, while a charge for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of like principle, or similar to that being con- fendant and another with the time and place sidered, was condemned as argumentative in of the homicide, acting in concert, etc.-and Shepperd v. State, 94 Ala. 102, 10 South. 663, defendant's evidence tended to show for him Potter v. State, 92 Ala. 37, 9 South. 402, Den an alibi. Held: nis v. State, 112 Ala. 65, 68, 20 South. 925,

"A charge which instructs the jury that 'a and Rigsby v. State, 152 Ala. 9, 44 South. 608. probability that some other person may have

The subject and form of the charge ap- done the killing, is sufficient to create a reaproved in Gilmore's Case, şupra, was given sonable doubt of the guilt of the defendant,' is specific treatment and condemned as errone- properly refused; since the defendant and the ous in Thomas v. State, 106 Ala. 19, 22, 17 other person, both being present, aiding and South. 460, 461, where the court said:

abetting in the commission of the homicide,

were each equally guilty, and the fact that the “After stating the true rule, the charge went other person fired the fatal shot would not jusfurther and in its closing statement asserted tify the acquittal of the defendant." that the full measure of proof required was not complied with, if the circumstances could In Ott v. State, 160 Ala. 29, 33, 49 South. be reasonably reconciled with the theory that | 810, it was declared, of the ruling on evi'the defendant may be innocent.'"

dence, that In the case of Compton v. State, 110 Ala. that there was no evidence to show that the

"The trial court erred in instructing the jury 24, 20 South. 119, a charge seeking to instruct two negroes, Josh and Will Dickinson, had that it was the duty of the jury to addpt anything to do with the killing of deceased.” that construction favorable to the defendant rather than that which is unfavorable, “ir

The statement there that: there be two reasonable constructions which

"When the evidence is circumstantial, it must can be given to facts proven," etc., was con- be so complete, so strong, so cogent, as to demned. And in Barnes v. State, 111 Ala. show guilt to a moral certainty. It must ex56, 20 South. 565, it was declared that a clude every other reasonable hypothesis than charge is bad that requires or authorizes an that of the guilt of the accused. No matter how acquittal if the evidence could be reconciled strong the circumstances, if they can be rec

ciled with the theory that one other than the "with a possibility that another than the de

defendant committed the crime for which he is fendant committed the offense."

on trial, he should be à cquitted," In Turner v. State, 124 Ala. 59, 27 South, 272, Mr. Justice Sharpe said of a charge in- -was not of the sufficiency of a charge as structing for the acquittal of defendant if that before us, but a general statement of the jury could reconcile the evidence with the burden of proof or sufficiency of the the theory that some other person may have evidence required of the state in such a case done the act that it "appears to have been where the relevant evidence (as indicated) copied from the opinion rendered in Es parte was admitted. Acree, 63 Ala. 234,” and that the effect of the [1] A classification of the decisions of this Acree Case, 63 Ala, 234, was that it was court according to the facts of each case "not authority for charging the jury in the warrants the statement that (1) such a language used." The same justice made a charge in proper form is improper except in like announcement in Oakley v. State, 135 those cases where there is evidence pointing Ala: 29, 33 South, 693, where the same con- to another person or persons than defendclusion was announced upon the authority of ant as the party or parties who was or were Bohlman v. State, 135 Ala. 45, 33 South. guilty of the offense; (2) that such a charge 44. There the justice specifically deals with is improper if the nature of the offense is the departure from the rule that was an- such that both defendant and another “may nounced in Gilmore's Case, 99 Ala. 154, 13 have been guilty” of the commission thereSouth. 536, the overlooking of Shepperd v. of; and (3) in a proper case—where such State, 94 Ala. 102, 10 South. 663, and Den-charge is allowable—the "theory hypothenis v. State, 112 Ala. 65, 20 South. 925, and sized should be a reasonable theory" that is held that such charge now for consideration supported by and referred to the evidence. was erroneous, and that the Gilmore Case) Pitman v. State, 148 Ala, 612, 42 South, 993. 60 far as it holds to the contrary, is over- [2] Charge 1, requested by the defendant, ruled. See, also, Bowen v. State, 140 Ala. was properly refused. It offended the fore65, 37 South. 233; Parham v. State, 147 Ala. going statement of the rule, in that it did not 57, 42 South. 1.

hypothesize (1) that the circumstances in eviIn Parham v. State, supra, Fowler v. State, dence showed that some other person than 155 Ala. 21, 28, 45 South. 913, and Phillips v. the defendant committed the offense of havState, 162 Ala. 23, 24, 50 South. 191, Mr. ing prohibited liquors in his automobile at Justice Denson condemned charges such as the time and place indicateci, and (2) that the that under consideration.

theory hypothesized (in the charge) was not In Pickens v. State, 115 Ala. 42, 22 South. that it was a reasonable theory arising out 551, the defendant was tried for murder, of the evidence. and the evidence in behalf of the state was There was no error as to the admission of (100 So.) fact as contained in the opinion of the Court , under the general prayer, held authorized to of Appeals.

award alimony and counsel fees and custody of The writ of certiorari is denied.

the children to plaintiff wife, when consistent Writ denied.

with case made by bill and proof. ANDERSON, C. J., and GARDNER and

Appeal from Circuit Court, Jefferson CounMILLER, JJ., concur.

ty; William M. Walker, Judge.

Bill for divorce, alimony, etc., by Mae V. Cairnes against Thomas C. Cairnes. From the decree respondent appeals. Corrected

and affirmed. CAIRNES V. CAIRNES. (6 Div. 39.)

See, also, 209 Ala. 358, 96 South. 246.

Erle Pettus and Roy McCullough, both of (Supreme Court of Alabama. April 24, 1924. Birmingham, for appellant. Rehearing Denied May 29, 1924.)

Harsh, Harsh & Harsh, of Birmingham, 1. Husband and wife and Husband and fa- for appellee. ther not required to exhaust corpus of his estate to provide income for wife, with whom

ANDERSON, O. J. The appellee filed a he is not living as husband.

A husband and father is not required to bill for a divorce from bed and board only, give up or surrender everything he has 80 as sought alimony, temporary and permanent, to deprive himself of a support or exhaust the and the custody of the minor children. She corpus of his estate in order to provide an in

was awarded temporary alimony and an atcome for his wife, with whom he is not living torneys' fee of $250, but upon final hearing as her husband.

she was denied relief as to the divorce, the 2. Divorce 286–Trial court's conclusion as primary feature of the bill, though the trial

to financial worth of husband and allowance court under the general prayer awarded her of aid pursuant thereto not disturbed.

for herself and three minor children, includTrial court's conclusion as to defendant ing the use of the residence, $350 per month; husband's financial worth, and the alimony also awarded her the custody of said chil. allowed pursuant thereto, could not be held so dren, and allowed $1,750 in addition to what plainly contrary to the great weight of the evi- had been previously allowed as a fee for her dence as to warrant the appellate court in dis- attorney. The trial court having denied returbing same, though the allowance seemed lav- lief as to the main feature of the bill, and ish, where witnesses were examined ore tenus, complainant not having appealed, the only and there was evidence and inferences to justify trial court's conclusion.

question presented for review is the correct

ness of the decree as to the relief that was 3. Divorce w 245(1)-Trial court may modify granted. allowance upon showing of hardship.

[1] This is not a case where the husband The trial court may modify an allowance had or was contending for the custody of for alimony, over which it has reserved con- the children or had abandoned his family trol, upon proper showing that it will work op: without providing them with means of suppression or hardship in case of a diminution of the husband's income or a change in the condi-port, but where he voluntarily left the home, tion or necessities of the family.

and, we may concede, through his own fault, 4. Divorce w306–Child, upon attaining his the evidence tends to show that his home

as the trial court in effect so found, though majority not to be considered as dependent, life was not as pleasant and congenial as on question of alimony.

On the question of alimony, a child after it might have been, but provided them with attaining his majority should not be included as

a comfortable home and made them a montha dependent.

ly allowance as a reasonable support. When

we say reasonable allowance, we mean one 5. Divorce 197-Allowance of counsel fees that would comfortably support a family of to complainant reduced.

this size under careful and prudent manageWhere, in a suit for divorce, the only relief awarded against the husband was a smali ment. So the only issue was whether or not increase in the allowance he was making to

the amount the respondent was contributing complainant and the minor children, which was

was adequate and proper, taking into conthe only default found against him by the de- sideration his income and what was a reacree, allowance of $750 of counsel fees to com- sonable attorneys' fee for procuring an inplainant in addition to $250 previously allowed crease of said allowance in case the same pendente lite held sufficient, and to that extent was inadequate. Murray v. Murray, 84 Ala. allowance of $1,750 ordered reduced.

364, 4 South. 239; Rearden v. Rearden, 210 6. Divorce 231, 294-Relief consistent with Ala. 129, 97 South. 138, and cases there cited. case made by bill and proof could be awarded

(2-4) While the "Good Book” denounces under general prayer.

the man who provideth not for his own as Though divorce from bed and board, the "worse than an infidel,” there is nothing in primary relief sought, was denied, the court, the laws of God or man that requires the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes