(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 material fact, they could reject her testimony altogether; "belief" expressing a deeper degree of conviction than "reasonably satisfied." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Belief.] Certiorari to Court of Appeals. Leo Bush was convicted of an offense and appealed to the Court of Appeals; and, the judgment being reversed, the State, on the relation of its Attorney General, petitions for certiorari to the Court of Appeals to review and revise the judgment and decision there, rendered in the case styled Bush v. State, 100 South. 307. Writ granted. See, also, 100 South. 314. but reasons why error should not be predi- [2, 3] Error, in the opinion of the Court of Appeals, is also predicated of the trial court's 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: "(1) If the jury are satisfied beyond a rea.sonable doubt that defendant assaulted Alma McNeal, then the jury cannot acquit him.” Charges 2, 3, and 15, refused to defendant, are as follows: phase of the evidence calling for a correct statement to the jury of the general rule of law embodied in these charges, for similar charges were given in the trial court, and otherwise the question as to the charges now under discussion would have been dismissed 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 has will-predicated of the refusal of charges 2 and 3, fully sworn falsely as to any material fact in the case, that they may wholly disregard all of her testimony. 66 (3) If the jury believe that Alma McNeal willfully and corruptly swore falsely as to any material fact, then they may disregard all her testimony." "(15) If the jury believe from the testimony that Alma McNeal willfuly and corruptly on this trial swore falsely as to any material fact, then they may reject her testimony altogether." Charges 6 and 7, given for defendant, read: for they do not hypothesize the jury's belief as "from the evidence." But the refusal of charge 15 raises a different question, for the hypothesis there is that "the jury believe from the testimony," etc. The legal proposition sought to be stated in this charge is usually predicated of a "finding" by the jury, and in that form this court has frequently said that it should be given in cases calling for its application. By it the jury are instructed, not that they must disregard the whole testimony of the witness in may do so-have the legal right to do so. the event hypothesized, but only that they McClellan v. State, 117 Ala. 140, 23 South. 653; A. G. S. R. R. v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep. 28; Jordan v. State, 81 Ala. 20, 1 South. 577; Childs v. State, 76 Ala. 93. Other cases to the same effect might be cited. But our judgment is that in charges 6 and 7, given to the jury at his request, defendant had the benefit of the 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. "(6) The court charges the jury that if they are reasonably satisfied from the evidence that Alma McNeal willfully and falsely swore as to any material facts in the case, then the jury are authorized to disregard her testimony entirely, they should acquit the defendant." “(7) If the jury are reasonably satisfied from the evidence that Alma McNeal willfully and falsely swore as to any material fact in the case, then the jury are authorized to disregard her testimony entirely." presses a deeper degree of conviction, than the phrase "reasonably satisfied," employed in the charges given. Farmers' & Merchants' Bank v. Hollind, 200 Ala. 371, 76 South. 287. Defendant may have been willing to have the proposition stated in terms less favorable than his due; but it was no business of the trial court to give in charge to the jury any instruction except in the correct and appropriate terms of the law. SAYRE, J. [1] In its opinion on application for rehearing the Court of Appeals held the giving of charge 1 at the request of the state was error to reverse-this upon the ground that the charge fails to base or hypothesize the jury's conclusion upon belief "from the evidence." We have heretofore decided that trial courts may without error refuse such charges (Davis v. State, The conclusion is that the Court of Ap 188 Ala. 59, 66 South. 67, referred to in Ed-peals erred in its consideration of the charg es under discussion, and that, as for any question made upon these charges, the judgment of the trial court should have been affirmed. Writ granted; judgment of the Court of Appeals reversed, and cause remanded to that court for further proceedings in accordance with this opinion. All the Justices concur. Ex parte STATE ex rel. Attorney (4 Div. 135.) Harwell G. Davis, Atty. Gen., for the State. SAMFORD, J. The evidence in this case is entirely circumstantial. As circumstances tending to prove the guilt of defendant and connecting him with the liquor, it was relevant and competent to prove that defendant 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 a General.chase of about seven miles near a cemetery; that the defendant "was drinking"; that at that time the officer smelled whisky on defendant 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. Harwell G. Davis, Atty. Gen., and O. S. Lewis, of Dothan, for petitioner. Lee & Tompkins, of Dothan, and James J. Mayfield, of Montgomery, opposed. PER CURIAM. Leo Bush was convicted of an offense and appealed to the Court of Appeals; and the judgment of conviction being reversed, the state, on the relation of its Attorney General, petitions for certiorari to the Court of Appeals to review and revise the judgment and decision there rendered in the case styled Bush v. State, 100 South. 307. Writ denied. that defendant was running the car as fast as it would go; that shortly after the arrest the officer went back to where he first saw defendant and picked up a Coca-Cola bottle and a pint bottle; that in the pint bottle there was a little corn whisky; that these bottles were in the edge of the road where defendant had passed; that it was about one hour from the time defendant had passed; that further down the road where defendant had passed the officer found a board carton with excelsior in it; that it had on the carton the name of a man who 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. HILL v. STATE. (5 Div. 438.) (Court of Appeals of Alabama. Feb. 5, 1924. Rehearing Denied April 8, 1924.) Criminal law 351 (3)-Ċircumstantial evidence as to defendant's flight and articles discarded by him held competent. In prosecution for possession of prohibited liquors, evidence that defendant, when ordered by officer to halt, speeded up car, and was caught only after chase of several miles, and as to articles found in car and along road after defendant's flight, held competent. the officer examined the road where defendant 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 officer found a quart bottle of whisky "hung up in a thick briar patch," which had a cob stopper; that just a little below this on the edge of the same road he found a quart bottle broken, and near it a cob stopper that fitted the bottle; that another quart bottle was found on the road, thrown right on the bank on the right side, with a cob stopper; that the whisky was what is known as corn whisky; that the officer was familiar with and knew the smell of corn whisky; that the car smelled of corn whisky. Many questions bringing out the foregoing evidence were objected to, motions were made to ex Appeal from Circuit Court, Tallapoosa clude the answers, and exceptions were reCounty; S. L. Brewer, Judge. Bud Hill was convicted of having in his possession prohibited liquors, and appeals. Affirmed. Certiorari denied by Supreme Court in Ex parte Hill, 100 South. 315. served. The case made by the state to establish the guilt of defendant was entirely circumstantial, and the foregoing were all admissible as circumstances tending to connect the defendant with the offense charged. The court did not err in any of its rulings. 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-Numvered Digests and Indexes Ex parte HILL. (5 Div. 892.) (Supreme Court of Alabama. (100 So.) May 22, 1924.) Since there was no specific discussion of the charge, it should be said charges invoking like principles of law of circumstantial evidence have been considered. The rulings of the Court of Appeals on the subject when considered are not inconsistent.. 1. Criminal law 814 (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. Instruction that the fact that circumstantial evidence solely relied upon by state indicates another than defendant may be guilty is sufficient to create a reasonable doubt is improper, except where there is evidence indicating the guilt of another person or persons than defendant, or if the offense is of such nature that both defendant and another may have been guilty of its commission, and when given in proper case the theory hypothesized should be a reasonable theory supported by and referred to the evidence. 556, 74 South. 98; Newell v. State, 16 Ala. App. 77, 75 South. 625; Machem v. State, 16 Ala. App. 170, 76 South: 407; Jones v. State, 18 Ala. App. 116, 90 South. 135. It should be noted, however, that these cases last cited had no specific charge for consideration, as was instant charge 1. In the Jones Case, supra, the approval was of the oral charge declaring that the test is "not that the circumstances be as strong as the testimony of one or more eyewitnesses, but the test is, Do the circumstances produce a conviction of guilt in the minds of the jury to a moral certainty?" The general statement of 2. Criminal law 814(3)-Instruction to find defendant not guilty if circumstantial evidence indicated possible guilt of another held prop-law that follows cannot be said to authorize erly denied. In prosecution for possession of prohibited liquor, instruction that if the evidence is circumstantial or partly circumstantial, and if the circumstances are such that another than defendant may be guilty, then the jury should adopt the theory which leads to the belief that defendant is not guilty, held properly denied where evidence did not indicate another's guilt, and the theory hypothesized was not reasonable. Certiorari to Court of Appeals. Petition of Bud Hill for certiorari to the Court of Appeals to review and revise the judgment and decision there rendered in the case of Hill v. State, 100 South. 314. Writ denied. the giving by the trial court of the charge cilable. Thus the In Chisolm v. State, 45 Ala. 66, it is said of the sufficiency of circumstantial evidence that it should be "such as to exclude a rational probability of innocence" of the defendant. In Salm v. State, 89 Ala. 56, 58, 8 South. 66, charge 20, on circumstantial evidence, that was approved, asserted the prop Charge 1, refused to defendant, is as fol-osition that— lows: "(1) I charge you, gentlemen of the jury, that, if the evidence is circumstantial or partly circumstantial, and if the circumstances are such as that some person other than the defendant may have committed the offense, if any was committed, then you should adopt the theory which leads to the belief that the defendant is not guilty." Jas. W. Strother, of Dadeville, for peti tioner. Harwell G. Davis, Atty. Gen., opposed. THOMAS, J. After a discussion of rulings on the introduction of evidence, the further announcement of the Court of Appeals that "the court did not err in any of its rulings" embraced the refusal of defendant's charge 1. It is unnecessary to refer the same to the Court of Appeals for further treatment. Having ruled thereon, a case within Ex parte Cowart, 201 Ala. 55, 77 South. 349, is not presented. "The evidence must be strong and cogent; and unless it is so strong and cogent as to show the defendant's guilt to a moral certainty, the jury must find him not guilty." (Italics supplied.) In Ex parte Acree, 63 Ala. 234, it is declared that, where the evidence was circumstantial, the defendant should not be convicted on such evidence "unless it shows by a full measure of proof that the defendant is guilty"; such proof is insufficient "unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused"; and "no matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof," etc. (Italics supplied.) A charge couched in the general statement of law to be found in Ex parte Acree, supra, was approved in Gilmore v. State, 99 Ala. 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 considered, was condemned as argumentative in Shepperd v. State, 94 Ala. 102, 10 South. 663, Potter v. State, 92 Ala. 37, 9 South. 402, Den nis v. State, 112 Ala. 65, 68, 20 South. 925, and Rigsby v. State, 152 Ala. 9, 44 South. 608. The subject and form of the charge approved in Gilmore's Case, supra, was given specific treatment and condemned as erroneous in Thomas v. State, 106 Ala. 19, 22, 17 South. 460, 461, where the court said: "After stating the true rule, the charge went further and in its closing statement asserted that the full measure of proof required was not complied with, if the circumstances could be reasonably reconciled with the theory that 'the defendant may be innocent.'" In the case of Compton v. State, 110 Ala. 24, 20 South. 119, a charge seeking to instruct that it was the duty of the jury to adopt fendant and another with the time and place of the homicide, acting in concert, etc.-and defendant's evidence tended to show for him an alibi. Held: "A charge which instructs the jury that 'a probability that some other person may have done the killing, is sufficient to create a reasonable doubt of the guilt of the defendant,' is properly refused; since the defendant and the other person, both being present, aiding and abetting in the commission of the homicide, were each equally guilty, and the fact that the other person fired the fatal shot would not justify the acquittal of the defendant." In Ott v. State, 160 Ala. 29, 33, 49 South. 810, it was declared, of the ruling on evidence, that- that there was no evidence to show that the "The trial court erred in instructing the jury two negroes, Josh and Will Dickinson, had anything to do with the killing of deceased." The statement there that: that construction favorable to the defendant rather than that which is unfavorable, "if 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"with a possibility that another than the de-onciled with the theory that one other than the defendant committed the crime for which he is fendant committed the offense." on trial, he should be acquitted," 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 Ex parte was admitted. Acree, 63 Ala. 234," and that the effect of the Acree Case, 63 Ala, 234, was that it was "not authority for charging the jury in the language used." The same justice made a like announcement in Oakley v. State, 135 Ala. 29, 33 South, 693, where the same conclusion was announced upon the authority of Bohlman v. State, 135 Ala. 45, 33 South. 44. There the justice specifically deals with the departure from the rule that was announced in Gilmore's Case, 99 Ala. 154, 13 South. 536, the overlooking of Shepperd v. State, 91 Ala. 102, 10 South. 663, and Dennis v. State, 112 Ala. 65, 20 South. 925, and held that such charge now for consideration was erroneous, and that the Gilmore Case, so far as it holds to the contrary, is overruled. See, also, Bowen v. State, 140 Ala. 65, 37 South. 233; Parham v. State, 147 Ala. 57, 42 South. 1. In Parham v. State, supra, Fowler v. State, 155 Ala. 21, 28, 45 South. 913, and Phillips v. State, 162 Ala. 23, 24, 50 South. 191, Mr. Justice Denson condemned charges such as that under consideration. In Pickens v. State, 115 Ala. 42, 22 South. 551, the defendant was tried for murder, and the evidence in behalf of the state was [1] A classification of the decisions of this court according to the facts of each case warrants the statement that (1) such a charge in proper form is improper except in those cases where there is evidence pointing to another person or persons than defendant as the party or parties who was or were guilty of the offense; (2) that such a charge is improper if the nature of the offense is such that both defendant and another "may have been guilty" of the commission thereof; and (3) in a proper case where such charge is allowable-the "theory hypothesized should be a reasonable theory" that is supported by and referred to the evidence. Pitman v. State, 148 Ala. 612, 42 South. 993. [2] Charge 1, requested by the defendant, was properly refused. It offended the foregoing statement of the rule, in that it did not hypothesize (1) that the circumstances in evidence showed that some other person than the defendant committed the offense of having prohibited liquors in his automobile at the time and place indicated, and (2) that the theory hypothesized (in the charge) was not that it was a reasonable theory arising out of the evidence. 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. The writ of certiorari is denied. Writ denied. ANDERSON, C. J., and GARDNER and MILLER, JJ., concur. CAIRNES v. CAIRNES. (6 Div. 39.) (Supreme Court of Alabama. April 24, 1924. Rehearing Denied May 29, 1924.) 1. Husband and wife 4-Husband and father not required to exhaust corpus of his estate to provide income for wife, with whom he is not living as husband. A husband and father is not required to give up or surrender everything he has so as to deprive himself of a support or exhaust the corpus of his estate in order to provide an income for his wife, with whom he is not living as her husband. 2. Divorce 286-Trial court's conclusion as to financial worth of husband and allowance of aid pursuant thereto not disturbed. Trial court's conclusion as to defendant husband's financial worth, and the alimony allowed pursuant thereto, could not be held so plainly contrary to the great weight of the evidence as to warrant the appellate court in disturbing same, though the allowance seemed lavish, where witnesses were examined ore tenus, and there was evidence and inferences to justify trial court's conclusion. award alimony and counsel fees and custody of the children to plaintiff wife, when consistent with case made by bill and proof. Appeal from Circuit Court, Jefferson County; 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. See, also, 209 Ala. 358, 96 South. 246. Erle Pettus and Roy McCullough, both of Birmingham, for appellant. Harsh, Harsh & Harsh, of Birmingham, for appellee. ANDERSON, C. J. The appellee filed a bill for a divorce from bed and board only, sought alimony, temporary and permanent, and the custody of the minor children. She was awarded temporary alimony and an attorneys' fee of $250, but upon final hearing she was denied relief as to the divorce, the primary feature of the bill, though the trial court under the general prayer awarded her for herself and three minor children, including the use of the residence, $350 per month; also awarded her the custody of said children, and allowed $1,750 in addition to what had been previously allowed as a fee for her attorney. The trial court having denied relief as to the main feature of the bill, and complainant not having appealed, the only question presented for review is the correct ness of the decree as to the relief that was 3. Divorce 245(1)-Trial court may modify granted. allowance upon showing of hardship. The trial court may modify an allowance for alimony, over which it has reserved control, upon proper showing that it will work op pression or hardship in case of a diminution of the husband's income or a change in the condition or necessities of the family. 4. Divorce 306—Child, upon attaining his majority not to be considered as dependent, on question of alimony. On the question of alimony, a child after attaining his majority should not be included as a dependent. 5. Divorce 197-Allowance of counsel fees to complainant reduced. Where, in a suit for divorce, the only relief awarded against the husband was a small increase in the allowance he was making to complainant and the minor children, which was the only default found against him by the decree, allowance of $750 of counsel fees to complainant in addition to $250 previously allowed pendente lite held sufficient, and to that extent allowance of $1,750 ordered reduced. 6. Divorce 231, 294-Relief consistent with case made by bill and proof could be awarded under general prayer. Though divorce from bed and board, the primary relief sought, was denied, the court, [1] This is not a case where the husband had or was contending for the custody of the children or had abandoned his family without providing them with means of support, but where he voluntarily left the home, and, we may concede, through his own fault, as the trial court in effect so found, though the evidence tends to show that his home life was not as pleasant and congenial as it might have been, but provided them with a comfortable home and made them a monthly allowance as a reasonable support. When we say reasonable allowance, we mean one that would comfortably support a family of this size under careful and prudent management. So the only issue was whether or not the amount the respondent was contributing was adequate and proper, taking into consideration his income and what was a reasonable attorneys' fee for procuring an increase of said allowance in case the same was inadequate. Murray v. Murray, 84 Ala. 364, 4 South. 239; Rearden v. Rearden, 210 Ala. 129, 97 South. 138, and cases there cited. [2-4] While the "Good Book" denounces the man who provideth not for his own as "worse than an infidel," there is nothing in 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 |