CASES IN THE SUPREME COURT OF ALABAMA. ADAMS V. STATE. INSTRUCTIONS, IF MISLEADING, SHOULD BE REFUSED.-A charge, though technically correct, may be so expressed as to mislead the jury; and a court should always refuse to give such a charge. INSTRUCTIONS - CRIMINAL LAW REASONABLE DOUBT “A FIXED CONVICTION".-There is no error in refusing to instruct the jury, in a criminal case, that they "are not satisfied beyond a reasonable doubt" unless they have "a fixed conviction" of the truth of the charge, for such an instruction is calculated to mislead them, on account of the ambiguous words, "a fixed conviction." Indictment for the larceny of an overcoat and pistol from a dwelling-house. The property stolen belonged to William M. Ellis, who was introduced as a witness by the state. Ellis testified that, on September 1, 1896, he missed his overcoat and pistol from his room; that he never saw the pistol afterward, but that, in December, 1896, he did see the defendant wearing his overcoat. He testified that the overcoat was his, and stated certain facts which enabled him to identify it. This was the testimony for the state, and the defendant moved to exclude the evidence and discharge him. His motion was overruled, and the defendant excepted. The defendant's testimony tended to show that one Jones gave him an overcoat similar to the one described by Ellis, and that it was this coat which he had on when Ellis saw him. The first charge requested by the defendant was as follows: "If the jury believe the evidence in this case, they must find the defendant not guilty." The second charge requested by him is in the opinion. Each charge was refused, and the defendant excepted. Miller & Kirven and Abrahams & Canterbury, for the appellant. William C. Fitts, attorney general, for the state. 91 COLEMAN, J. The defendant was convicted of petit larceny. After the evidence had closed, the defendant requested the court to instruct the jury as follows: "After considering all the evidence in this case, unless you can say that you have a fixed conviction of the truth of the charge, you are not satisfied beyond a reasonable doubt, and should not convict the defendant." First, is the charge expressed in that plain, simple, and unambiguous language which should characterize instructions to a jury? Louisville etc. R. R. Co. v. Hall, 87 Ala. 723; 13 Am. St. Rep. 84; Peterson v. State, 74 Ala. 34. Counsel for appellant have submitted an argument to show that the legal effect of the charge was the same as if requested to charge that "unless the jury were satisfied beyond a reasonable doubt of the defendant's guilt they should acquit." If no more was intended, we may well inquire why the instruction was expressed in the language selected. We are satisfied that the presiding judge was of the opinion that the instruction, as framed, required something more than that the jury should be satisfied beyond a reasonable doubt, and refused to give the charge for this reason. The jury might have believed from the charge requested that, before a verdict of guilty could be returned, there should be a conviction of guilt, unchangeable, immovable by any amount of other evidence. We have some difficulty ourselves in determining exactly what meaning was intended by "a fixed conviction." A charge may be technically correct, yet it may be expressed in such a way as to be calculated to mislead the jury. A court should always refuse such charges: 3 Brickell's Digest, sec. 85, p. 112; Knowles v. Ogletree, 92 96 Ala. 555. Whatever may have been intended, we are satisfied it was calculated to mislead the jury, and there was no error in refusing it. The other questions reserved are unimportant. It was for the jury to say whether the possession of the property was explained. The prosecution did not depend entirely upon the fact of possession. There was other evidence to show the opportunity of the defendant to steal the property. Affirmed. INSTRUCTIONS, MISLEADING - REASONABLE DOUBT.Charges to juries should be simple and free from a tendency to mislead. A charge, if misleading, should be refused, although on dissection it may assert a correct legal proposition: Louisville etc. R. R. Co. v. Hall, 87 Ala. 708; 13 Am. St. Rep. 84; Carson v. Stevens, 40 Neb. 112; 42 Am. St. Rep. 661; Perot v. Cooper, 17 Colo. 80; 31 Am. St. Rep. 258. Reasonable doubt is defined in the monographic note to Burt v. State, 48 Am. St. Rep. 566-579, showing what are misleading instructions on the point. BALKUM V. STATE. [115 ALABAMA, 117.] ASSAULT AND BATTERY-EVIDENCE OF CHARACTER -CROSS-EXAMINATION.-If a man is charged with assault and battery upon a woman, and she, upon his trial, testifies that he came to her house during the absence of her husband, and said to her: "I want you to be mine and let me do what I want to with you," and that he approached her, put his arms around her, and started with her toward a bed, when she got loose from him, he is gunty as charged. if such testimony is true; and, if he introduces evidence of his good character, it is proper, on the examination of witnesses who testify to his good character, to bring out the fact that his general character for "running after women" is bad. Sollie & Kirkland, for the appellant. William C. Fitts, attorney general, for the state. 118 COLEMAN, J. The defendant was convicted of an assault and battery upon one Martha Best. On the trial, she testified that defendant came to her house during the absence of her husband, and said to her, "I want you to be mine. . . . and let me do what I want to with you"; that he approached her and put his arms around her, and started with her toward the bed, when she got loose from him, et cetera. If this testimony was true, the defendant was guilty as charged. The defendant introduced evidence of his good character. On cross-examination, many of the witnesses who testified to the good character of the defendant, in answer to questions propounded by the state's solicitor, testified that the general character of the defendant "was bad for running after women." Both the question and answer were objected to by the defendant, but his objections were overruled. We are of opinion the court ruled correctly in admitting the testimony. There can be no misunderstanding of what was meant by the question and answer, "that his character was bad for running after women." We regard the case of Cauley v. State, 92 Ala. 71, and the reasoning of the court, as a direct authority upon the question in support of the admissibility of the evidence. We find no other question worthy of consideration in the record. Affirmed. CRIMINAL LAW-EVIDENCE OF CHARACTER-CROSS-EXAMINATION.-Evidence of character, to be admitted in a criminal case, must be confined to the trait in issue: See notes to O'Bryan v. O'Bryan, 53 Am. Dec. 134; Wachstetter v. State, 50 Am. Rep. 99; and, when so confined, the prosecution may, on cross-examination, investigate such trait Wachstetter v. State, 99 Ind. 290; 50 Am. Rep. 94. SHAHAN V. ALABAMA GREAT SOUTHERN RAILROAD CO. [115 ALABAMA, 181.] ADVERSE POSSESSION PRESUMPTION — ADVERSE USER.-The adverse claim of a right, and its exercise, uninterruptedly and without objection, for a period of ten years, raises a presumption that the right was lawfully acquired, and bars redress for its rightful exercise; but a right by adverse user does not accrue until there is an adverse user. ADVERSE POSSESSION-INSUFFICIENT PLEA OF ADVERSE USER.-In an action to recover damages against a railroad company for an injury resulting from an overflow of water from rainfall caused by embankments and culverts, which obstructed its natural flow, a plea which merely avers that the defendant constructed its embankments and culverts more than ten years prior to the injury, and has maintained them in the same condition ever since, without more, is insufficient as a plea of adverse user. ADVERSE POSSESSION-SUFFICIENT PLEA OF ADVERSE USER.-In an action to recover damages against a railroad company for an injury resulting from an overflow of water from rainfall caused by embankments and culverts, which obstructed the natural flow, a plea that, by reason of the embankments and culverts, the water had overflowed to the same extent, at intervals, during ten years prior to the injury, without complaint from the plaintiff, and that the results had been acquiesced in by the plaintiff, would be good. PLEADING-WHEN A GENERAL DEMURRER SHOULD BE OVERRULED.-If the statute requires that a demurrer shall distinctly state or specify in what the objection or defect consists, it is proper to overrule a general demurrer to pleas, such as one declaring that the pleas fail to state facts material and relevant to the issue. APPEAL PLEADING GENERAL ISSUE SPECIAL PLEAS-AFFIRMANCE OF JUDGMENT.-If a case is tried by the court alone, upon its merits, under the plea of the general issue, and without any reference to the special pleas of the defendant, the judgment must be referred to the general plea, and must be affirmed, if it is authorized by the facts under such plea, although there may have been error in overruling a demurrer to some of the special pleas. RAILROADS OBSTRUCTED CULVERTS - FLOODING PROPERTY-LIABILITY.-A railroad company is answerable in damages for flooding the plaintiff's store where it is caused by obstructions which prevent the escape of water, coming from a rain |