Williams v. The State

Williams v. The State. Indictment for Forgery. 1. Demurrer not ahoum by the record. — Demurrers not appearing in the record cannot be considered by the court. 2. Explanatory charge. — When the defendant asks the written charge, that, “if there is a probability of the defendant’s innocence, then the jury should acquit the defendant,” it is not error for the court, ex mero mola, to explain to the jury, orally, the definition and meaning of the word, “probability.” EboM the Circuit Court of Wilcox. Tried before the Hon. JOHN Moobe. The defendant was indicted and tried for forgery, at the Fall Term, 1892. The defendant asked the written charge: “If there is a probability of the defendant’s innocence, then the jury should acquit the defendant,” which was given, with the oral explanation to the jury, that “probability is the state of being probable,” and that “probable had been defined to be, having more evidence for than against — supported by evidence which inclines the mind to belief, but leaves some room for doubt.” To this oral charge, or explanation, the defendant excepted, and takes this appeal. Note. No briefs came into the hands of the Reporter. [MAJORITY — HEAD, J.] HEAD, J. The minute entry recites that the defendant demurred to the indictment on the grounds set forth in the demurrer, which the court overruled. There is no demurrer in the record, and we have no brief pointing out the supposed defects. We are unable to see any defect or insufficiency in the indictment. —Rembert v. State, 53 Ala. 467; Horton v. State, Ib. 488; Hobbs v. State, 75 Ala. 1; Johnson v. State, 35 Ala. 370; Code 1886, § 4385. It follows the language of the statute. — Code, § 3852. Tbe defendant objected to tbe introduction of tbe instrument, tbe subject of tbe alleged forgery, on tbe same grounds as those stated in bis demurrer to tíre indictment. There being no demurrer in tbe record, we are not informed what those grounds were. We can see no objection to tbe admissibility of tbe paper. Tbe charge given by tbe court, to which exception was reserved, was in exact accord with what was said in Bain v. State, 74 Ala. 38, and was free from error. Tbe judgment of tbe Circuit Court is affirmed. Affirmed.