majority"> SAMFORD, J.

The court, in its oral charge, in charging upon the law applicable to the recent unexplained possession of stolen property, said:

“The recent unexplained possession of goods does not necessarily raise the presumption of larceny or the guilt of the possessor. However, recent unexplained possession of the goods shown to be stolen in such a circumstance which the law permits to be shown you, and to which you, in your sound discretion, may give such weight as you think proper, ■ to pass on the innocence of the defendant. It is for you to say what weight is to be attached to the value of recent possession. Has the defendant satisfied you by his explanation, reasonably satisfied, or satisfied you beyond a reasonable doubt by his explanation, you as men of everyday business affairs, common sense, and judgment?”

To that portion of the foregoing excerpt where the court asked the jury, “Has the defendant satisfied you by his explanation, reasonably satisfied, or satisfied you beyond g reasonable doubt by his explanation?” the defendant reserved an exception. This is not the rule with reference to the recent unexplained possession of stolen goods. It places *95 too great a burden on tbe defendant. Tbe explanation required by tbe law is that it shall be such as, when considered in connection with all the other evidence in the case, will generate in the minds of the jury a reasonable doubt of the guilt of the defendant. This error cannot be said to be without injury, or that it was cured by other portions of the court’s charge upon this point.

As this ease must be reversed, we deem it necessary to call attention to another portion of the court’s charge not excepted to by the defendant. Under the statute, if the goods alleged to have been stolen were stolen from the storehouse of the Parisian Company, and the value thereof amounted to $5 or more, it would be grand larceny. Code 1907, § 7324.

Any error that may have arisen by the refusal of the court to give at the request of the defendant in writing charges defining a reasonable doubt was rendered harmless by the giving of charge 3, as follows:

“The only foundation for a verdict of guilt in this case is that the entire jury shall believe from the evidence, beyond a reasonable doubt and to a moral certainty, that the defendant is guilty as charged in the indictment to the exclusion of every probability of his innocence and every reasonable doubt of his guilt; and if the prosecution has failed to furnish such measure of proof, and to impress the minds of the jury of his guilt, they should find him not guilty.”

A majority of the court, BROWN, P. J., and BRICKEN, J., are of the opinion that charge 26, while asserting a correct proposition of law, is not applicable to the facts in this case, but the writer is of the opinion that the charge is applicable and that it is amply sustained by the following cases: Cobb v. State, 100 Ala. 19, 22, 14 South. 362; Rountree v. State, 58 Ala. 381; McMullen v. State, 53 Ala. 531.

The other questions presented, will probably not arise on another trial, but for the error pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.

Citation profile

Relationships

How this case has been treated — in progress