
    Williams & Youngblood v. The State.
    
      Indictment for Larceny.
    
    
      Charge to fry; what erroneous. — It is error to charge the jury in a criminal case that, “ although they may have a reasonable doubt of any single fact in the testimony of any witness, they cannot acquit unless such fact is material to the issue joined.”
    Appeal from Circuit Court of Pike.
    Tried before Hon. J. MoCaleb Wiley.
    The appellants were indicted and convicted for the larceny of two “ yearling cattle.” The testimony for the State tended to show that appellants, passing by the prosecutor’s field, turned the yearlings in with a drove of their own cattle and sold them in Montgomery. The identity of the cattle, seen in the drove, which some of the witnesses testified belonged to the prosecutor, was one of the material issues on the trial; and there was some conflict between the witnesses for the State and those for the defence as to the marks and peculiarities by which the yearlings were sought to be identified.
    Various exceptions were reserved to the ruling of the court ■ below, but it is only necessary to refer to one of them. The court, at the request of the solicitor, charged the jury “ that although they may have a reasonable doubt of any single fact in the testimony of any witness, they cannot acquit unless such fact is material to the issue joined.” To the giving of this charge the defendants excepted, and it is here assigned for error.
    N. W. Griffin and John D. Gardner, for appellants.
    The charge given is manifestly erroneous. Its evident tendency was to mislead the jury. How were they to determine what fact was material to the issue joined? A fact about which they had grave doubts, the existence of which would require an acquittal, might be thrown aside by the jury because they deemed it immaterial, when if they were charged that it was material, they would acquit.
    John W. A. Sanford, Attorney General, contra.
    
   JUDGE, J.

The charge given cannot be sustained. It had the effect of withdrawing from the consideration of the jury material evidence upon which the defendants relied to make good their defence, in this : it made their guilt turn upon the single question as to whether the jury might have a reasonable doubt upon “ any single fact in the testimony of any witness ; ” and if they should have such doubt, they were told that they “ could not acquit,” unless such fact was “ material to the issue joined.” Holmes v. The State, 23 Ala. 17. Furthermore, the charge erroneously left it to the jury to determine whether or not any of the facts in evidence in the cause were material to the issue joined; and besides, not asserting a correct legal proposition, it was calculated to mislead the jury to the prejudice of the defendants.

We deem it unnecessary to pass upon the other questions presented by the record, as they may not again arise on another trial.

For the error we have pointed out, the judgment must be reversed and the cause remanded. The defendant will remain in custody until discharged by due course of law.  