Bonner v. State

107 Ala. 97 | Ala. | 1894

McCLELLAN, J.

The evidence of Sam Key, an accomplice, was to the effect that he, Charley Morris and the defendant went to the house of the deceased, Andrew Higgins, at night for the purpose of rocking his house and making him leave the country. It was shown that Side1 Higgins, a son of the deceased, lived there with his father. And that the conspirators went within 75 or 80 yards of the house and began throwing rocks at it, when Andrew Higgins came out of the house with his gun and fired it off, whereupon Charles Morris fired his gun at the deceased, witness “fired Ms gun in the air” and did not know which way the defendant fired his gun.’ ’ Andrew' Higgins fell dead and the three men left the place together. On the state of case thus presented by the evidence of Ivey, the testimony of the witness James Bell as to the conversation between the defendant and said Morris shortly before the homicide which he, Bell overheard was clearly relevant and competent. Bell testified that Morris and Bonner “were talking and said something about the Higginses, exactly what, he did not remember. Boge Bonner said that he guessed by the time it was got through with that Side Higgins would not want to have another one of the Bonners arrested ; that there would go enough there to clean them up ; that if there v*as a little powder and lead used in this neighborhood, then there would be peace and quiet. This evidence disclosed a motive on the part of Bonner for the offense charged. It showed a hostile and deadly animus not only against Side Higgins, but against the Higginses and a purpose to go to the house where Side and his father, the deceased, lived “and clean them up.” And it supplied corroboration of the evidence of the accomplice Ivey in the matter of connecting the defendant with the homicide. This evidence was properly allowed to go to the jury. The evidence went to show a conspiracy betv'een Bonner, Morris and Key to run off if they could, or kill if they could not run off, the Higginses, father and son. Key’s testimony shows this. He is corroborated by the testimony of Bell. After this conspiracy was formed and the day before its purpose was in part consummated, two of the conspirators, Key and •Morris borrov'ed a gun, such as was used on the occasion of the’homicide, from one Davidson. Key testified that this gun was used on that occasion. The defendant objected to evidence of this fact on the ground that he ■was not present at the time nor shown to have known anything of the borrowing of the gun. The objection is untenable. On the familiar principle that the separate and, as between themselves disconnected acts of conspirators in line with the common design and in furtherance of the conspiracy may be given in evidence against all and each of them, this evidence was relevant ;ind competent.

The general charge of the court was given in writing. It covers the case pretty thoroughly and exhaustively, stating, of course, many distinct principles of law bearing on the case as presented to the jury, and expounding them concisely and correctly. The defendant excepted generally to the giving of this charge, the recital being: “The defendant excepted to the giving of the above charge.” And this is all. No exception was reserved to any particular part of the charge, nor to any single principle or proposition laid down in it; but the exception went to it as a whole. It has been too often decided by this court, and the doctrine is too well grounded in reason, that a general exception to the charge given ex mero moiu. by the presiding judge will avail the defendant nothing unless every proposition stated therein is unsound and erroneous, to be now departed from, or overturned even had we no decisions on the point. And this case illustrates the necessity and wisdom of thé rule. The reason underlying the principle — the theory upon which specific exceptions are required — is that if error has in fact been committed the exception reseiwed will point out the error to the presiding judge so that he may at once correct it. It is only upon this theory and for this reason that exceptions are required to be taken and noted at all; and but for this consideration the points relied on for a reversal in this court might well be made for the first time in this court. In the present case it is not insisted that any of the great number of abstract propositions laid down by the court are unsound; but only that in applying the law to this case the court omitted to hypothesise venue as one of the facts the jury should find before pronouncing the defendant guilty. It cannot be doubted, that if the exception had indicated that part of the charge where the abstract law was applied with hypothesis to this case — a most natural and easy thing to have been done — the court would at once have noted the omission of a hypothesis of venue and have corrected it. But with this general exception, only, the court’s attention was no more directed to that matter than any other' of a score or more propositions stated in the charge ; and as there appears to have been no issue made on the trial as to the venue, to sustain such an exception would be an especially pernicious violation of the rule requiring specific exceptions. It is untenable. The defendant in its reservation affirmed that the court’s charge was bad in every principle it asserted. Whether it is bad in every doctrine expounded or not is the issue he presents inj this. If thus vicious, 'he is entitled to a reversal. If not thus vicious, he is to cast on the issue and takes nothing by this exception. Confessedly the charge is sound in every proposition it advances except one; it is not bad as a whole. The exception must therefore be adjudged vain and abortive.

The general affirmative charge requested by the defendant was, of course, properly refused since, to say the least, the evidence tended to establish every fact essential to conviction.

We are not sure we know what is meant by the phrase, “reasonable chance of mistake” as used in defendant’s second request. We are sure though that to be'convinced beyond all reasonable chance of mistake is not the same thing as conviction beyond a reasonable doubt. “Chance” implies possibility and would probably have been so understood by the jury, and “reasonable possibility” is at last no more than a possibility, (Sims v. State, 100 Ala. 23) and it is not necessary to conviction that the evidence should exclude the possibility of the defendant’s innocence.

Chargi s 4 and 5 refused to the defendant are invasive of the province of the jury, and for that, if not also for other reasons, were properly refused. The court cannot tell the jury that a certain fact should “weigh but little” against the defendant, or that a certain other assumed fact “is a strong circumstance in the defendant’s favor.”

Among other faults of the 6th charge requested by the defendant it is open to the criticism that it is a pure argument.

Charge 10 given at defendant’s instance might well have been refused.— Webb v. State, MSS.

We do not think it error for the court to allow a party to withdraw a charge after the court has determined to give it and has so endorsed on the paper; it seems to us that the case put is distinguishable from that of Redus v. State, 82 Ala. 58, which had reference to refused charges when the statute required them to be delivered to the jury. But even were we to concede that the court in this case committed an error in allowing the solicitor to withdraw the charge which he had requested and which had been duly endorsed and given to the jury, the concession would avail the defendant nothing. The charge itself was a sound exposition of the law in every respect. It proceeded on the State’s theory of the case and was as favorable to the prosecution as the law admitted of its being. Had it been delivered into the hands of the jury, or, after being read, not been withdrawn by the court from their consideration its effect upon the jury would necessarily have been prejudicial to the defendant. So that if the court erred, it is clear that the error did not and could not have injured the appellant.

The judgment of the circuit court must be affirmed.