LAUDERDALE v. STATE, 23 Ala. App. 221 (1929)
123 So. 286
8 Div. 722.Court of Appeals of Alabama.
May 7, 1929.Rehearing Denied June 18, 1929.
Appeal from Circuit Court, Limestone County; James E. Horton, Judge.
Richard Lauderdale was convicted of unlawfully possessing a still, and he appeals. Affirmed.
See, also, 22 Ala. App. 52, 112 So. 92.
It appears from the bill of exceptions that on a former trial of this defendant some of the jurors on the present panel were on the panel in the former case. It further appears that Jurors Pugh and Cox were present at the former trial. Pugh testified that he did not remember hearing anything particularly about the case, and that he had no fixed opinion as to the guilt or innocence of the defendant.Page 222
Cox testified that he heard the evidence of two witnesses on the former trial, but that he had no fixed opinion as to the guilt or innocence of the defendant. This juror further testified that his feelings toward defendant were friendly, but that defendant was not friendly toward him; that he (Cox) had, as an officer, arrested defendant a time or two; and that this was the reason defendant did not speak to him. Neither juror was a member of the jury on the former trial. Defendant challenged said jurors for cause, and the trial court overruled the challenge.
Charge B, given for the state, is as follows: “I charge you, gentlemen of the jury, that if you believe from the evidence that Fletcher Owens wilfully swore falsely as to any material fact, you may disregard the whole of his testimony.”
Charge 2, refused to defendant, is as follows: “The humane provision of the law is, that there should not be a conviction upon the evidence, unless to a moral certainty it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure of proof which the law requires.”
R. B. Patton, of Athens, for appellant.
A party cannot impeach his own witness. Blackmon v. Cent. of Ga., 185 Ala. 635, 64 So. 592; Childers v. Holmes, 207 Ala. 382,92 So. 615; Consford v. State, 15 Ala. App. 627,74 So. 740. Evidence which raises merely a surmise or suspicion of guilt is insufficient. Gay v. State, 19 Ala. App. 238,96 So. 646. It is permissible to show that another, and not defendant, committed the crime. Glass v. State, 19 Ala. App. 530,98 So. 702; Tatum v. State, 20 Ala. App. 24, 100 So. 569. Defendant’s challenge of jurors should have been allowed. Cline v. State,20 Ala. App. 578, 104 So. 347.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
BRICKEN, P. J.
The evidence adduced upon this trial, without conflict or dispute, established the corpus delicti. The evidence also tended to show the guilty participation by the defendant as to the offense charged in the indictment. Appellant relies upon several adverse rulings of the court to effect a reversal of the judgment appealed from.
Jurors Pugh and Cox stated affirmatively that they had no fixed opinion as to the guilt or innocence of the defendant which would bias their verdict. It nowhere appeared otherwise; therefore the court properly declined to permit the defendant to challenge these jurors for cause. The exceptions here reserved are without merit.
It does not appear from the record, as insisted by appellant, that the state undertook to impeach its witness Fletcher Owens. There was other evidence relied upon by the state to secure a conviction, and the charge requested by the state as to the evidence of said witness was proper as stating a correct principle of law, and the fact that said charge referred to the state’s witness does not make it otherwise. The charge, when given, became a part of the law in the case and there was no error in giving said charge.
The offense here charged against appellant was susceptible of a joint commission by two or more parties; therefore the refusal of charge 2, requested by defendant, was proper. The substance of this and other charges refused to appellant was fairly and substantially covered by the oral charge and the special charges given at request of defendant.
There was no reversible error upon the trial of this case in the court below. The record proper is regular, and the judgment of conviction appealed from is affirmed.