
    Scott v. The State.
    
      Indictment for Burglary and Larceny.
    
    1. Relevancy of circumstantial evidence. — It being an issue of fact whether the defendant, who was charged with burglary, and with the larceny of a pistol, had put the pistol in a place where it was after-wards found by a witness for the State, - that witness testifying that the defendant, in passing through the yard to the house of the witness, stooped down and seemed to be hiding something in the grass, at the place where the witness afterwards found the pistol; while, according to the testimony of a witness for the defendant, the defendant in passing through the yard did not stoop down at all; — the defendant should be allowed, on the cross-examination of the witness for the State, to ask her if it was not a fact that other boys in the neighborhood were in the habit, at the time referred to, of playing around, and going in and out of, the house, as defendant had done that evening.
    2. Evidence of uncommunicated motive not admissible. — A witness for the State having testified that before the trial he made a statement in conflict, materially, with his testimony on the trial, should not, against the objection of the defendant, be permitted to testify that he had made such former statement because the defendant had asked him to do so.
    3. Jury not bound, to acquit became there is a mere possibility that defendant vs nut guilty. — In the absence of a reasonable doubt from the evidence of tlie defendant’s guilt, the jury are not required to acquit, merely because they believe from the evidence that it may be that is not guilty, or that it is possible that he is not guilty.
    Appeal from tbe City Court of Mobile.
    Tried before the Hon. O. J. Semmes.
    The appellant, Nathan Scott, was tried and convicted on an indictment charging him with burglary, and with the larceny of a pistol.
    The State having offered evidence tending to show the defendant’s guilt, he was examined as a witness in his own behalf. In the course of his examination, he stated that he did not at any time ask Ed. [Reynolds to claim the pistol. Ed. Keynolds was examined as a witness in rebuttal for the' State. This witness testified, that, on the day referred to by other witnesses for the State, he met the defendant with a pistol in his hand, and the defendant asked the witness to tell the defendant’s father, if he asked the witness anything about tlie pistol, that it belonged to him, Ed. [Reynolds; and that, during the same evening, the witness met defendant’s father, and upon being asked by him whose pistol it was that had been shot that evening, stated that the pistol belonged to him, tlie witness. The witness proceeding to testify, that “he had said that because the defendant had asked him to do so,” the defendant moved the court to exclude this portion of the testimony of the witness, and excepted to the refusal of the court to grant this motion.
    Tlie opinion sufficiently indicates the other evidence in the case bearing upon the questions considered by the court.
    The defendant excepted to the giving of the following written charges at the instance of the solicitor: (1.) “To prove beyond a reasonable doubt that the defendant is guilty, does not mean that the State must make the proof by an eye-witness, or to a positive, absolute, mathematical certainty. This latter measure of proof is not required in any case. If, from all the evidence, the jury believe that it is possible, or that it may be, or perhaps the defendant is not guilty, this degree of uncertainty does not amount to a reasonable doubt, and does not' entitle the defendant to an acquittal. All that is required is, that the jury should, from all the evidence, believe beyond a reasonable doubt that the defendant is guilty; and if they so believe, and it was in Mobile county, and before the finding of this indictment, they must find the defendant guilty, although they may also believe from the evidence that it may be that he is not guilty, or that it is possible he is not guilty.” (2.) “The court charges the jury that, if they are satisfied be.yond a reasonable doubt of the guilt of the defendant, from all the evidence in the case, good character included, then they should find him guilty, notwithstanding he may have proved a good character.”
    GREGORY L. & H. T. Smith, for appellant,
    cited Childs v. State, 58 Ala. 353; Hall v. State, 40 Ala. 706; K T., V & G. B. Co. v. Davis, 91 Ala. 621; Burks v. Bragg, 89 Ala. 204; Baldwin.v. Walker, 91 Ala. 428.
    Wm. L. MartiN, Attorney-General, for the State,
    cited Childs v. State, 58 Ala. 349.
   STONE, C. J.

The evidence in this case which tends to criminate the defendant is mostly circumstantial. After proving the ownership of the pistol, which was the subject of the larceny, and its loss by the owner, one main issue of fact was, whether the defendant had put the pistol in the place where it was afterwards found by one of the witnesses for the State. This was one of the most material issues of fact in the case, since it was principally through this that the possession of the pistol was traced to the defendant. Any testimony which would tend to either corroborate or contradict the asserted fact that the pistol was put in the place where it was afterwards found, would therefore be material and relevant; and this is true, however slight might be the tendency of such evidence. In Mattison v. State, 55 Ala. 224, this court held, that whatever tends to shed light on‘the main inquiry, and does not withdraw the attention of the jury from such inquiry by intruding upon them matters which are foreign, or of questionable pertinency, is, as a general rule, admissible evidence. The sufficiency of such evidence is a question exclusively for the determination of the jury. It is also a principle of our jurisprudence, that on the cross-examination of witnesses greater latitude is allowed than would be on the direct examination. The reason for such difference is patent, since it is- by this means the veracity of witnesses is tested, and the truthful rendering of the circumstances of each case is the better obtained.

Under the principles above announced, and considering the peculiar circumstances of tbis individual case, we are led to tlie conclusion, tbat tbe defendant should bave been allowed to ask tbe witnesses, Adam Palmer and Louisa Car-melieb, on cross-examination, “if it was • not a fact tbat all of tbe boys in tbe neighborhood were in tbe habit, at tbe time referred to, of playing around tbe bouse of Louisa Carmelich very frequently, and' of going in and out of tbe bouse in tbe way in which defendant bad done tbat evening?” "We are strengthened in tbis conclusion by tbe testimony of tbe witness John Beavens, which was somewhat in conflict with the testimony of Louisa Carmelich. Tbe latter testified as a State’s witness, tbat she saw tbe defendant come in her back gate, stoop down, and put something in the grass near her bouse, and tbat upon Adam Palmer complaining about bis pistol being stolen, she went to tbe place where she bad seen tbe defendant put something in tbe grass, and picked up tbe pistol, which Palmer identified as bis property. Beavins testified tbat be was in tbe yard of tbe said Louisa Carmelich on tlie afternoon in question, and saw tbe defendant come in at tbe back gate, and tbat be did not stop, or stoop down, and did not put anything in tbe grass near tbe said bouse. Tbe purpose of tbe testimony which was sought to be introduced by tbe defendant, was, no doubt, to corroborate tbe testimony of .the witness Beavins, and to contradict the testimony of Louisa Carmelich. In view of this conflict in the evidence, we can see how tbe offered testimony would be material. . However slight may bave been its tendency, if it existed at all, it was certainly pertinent to tbe main inquiry of tbe criminating fact, and tbe defendant slioukl bave bad tbe benefit of it.

Tbe testimony of tbe witness Ed. Beynolds, tbat be stated to tbe father of the defendant tbat the pistol belonged to him (Ed. Beynolds), “because tbe defendant bad asked him to do so,” slioukl have been excluded on motion of tbe defendant. Tbis testimony falls under tbe ban of tbe rule which bolds tbat an uncommunicated motive of word or deed is inadmissible. — Baldwin v. Walker, 91 Ala. 428; Burks v. Bragg, 89 Ala. 204; Stewart v. State, 78 Ala. 486.

Tbe court did not err in tbe charges given, nor in its refusal to give either of tbe charges requested by the defendant. Tbe evidence in tbe case did not justify the giving of either of tbe defendant’s charges.

Beversed and remanded.  