62 So. 1027 | Ala. Ct. App. | 1913
— In this case we reverse the order usually followed in the consideration of the points rais
The defendants (father and son) were jointly indicted for murder and were jointly tried; the jury returning a verdict which, after being corrected by them in an immaterial particular under the direction of the court, read as follows: “We, the jury, find the defendants guilty of manslaughter in the first degree and fix as their punishment five years in the penitentiary.” Formal judgment of conviction followed this verdict, and the court separately sentenced each of the defendants to five years in the penitentiary. It is contended by appellants’ counsel that this sentence was unauthorized because, as they claim, the verdict as to the punishment inflicted upon the defendants is joint and not several, and does not mean, as it was construed by the lower court, that each defendant is to serve a sentence of five years, but means that the two together are to serve five years, each such a portion thereof as to make up the total; and that this verdict, being joint and not several, is void for indefiniteness and uncertainty and could not form the basis of any valid sentence whatever in that it does not prescribe what portion of this five years each is to serve, whether each is to serve an equal portion of it, or whether one was to serve more of it than the other, and, if so, what the division between them of this punishment was to be.
In the case of State v. Gay, 10 Mo. 440, cited by appellant, the form of the verdict rendered is not given in the report of the case, but it appears that the punishment inflicted was only a fine, and the court held that there should have been a separate assessment against each defendant.
The only other cases, outside of this state, to which we are cited by appellants’ counsel are from the state of Texas, to wit: Allen v. State, 34 Tex. 230, Cunningham v. State, 26 Tex. App. 83, 9 S. W. 62, and Hines v. State, 48 Tex. Cr. R. 24, 85 S. W. 1057, in each of which the punishment was only a fine; and Hays v. State, 30 Tex. App. 472, 17 S. W. 1063, and Caesar v. State, 30 Tex. App. 274, 17 S. W. 258, where the form of the verdict was identical in substance 'to that here and where the punishment was by sentence to the penitentiary. These cases, however, on the point here urg-* ed, have ceased to be authority in the jurisdiction from which they emanated and therefore are certainly entitled to no weight elsewhere as precedents; for the Court of Criminal Appeals of Texas in a case later than the last two just named as cited by appellants’ counsel, that of Garza v. State, 43 Tex. Cr. R. 499, 66 S. W. 1098, where the verdict, as here, found the defendants guilty and assessed “their punishment” at three years’ confinement in the penitentiary, said: “Exceptions were reserved to this” verdict “on the theory that it was a joint verdict, and not a separate verdict, as to each. Some of the older cases so hold, but this has not been the rule since the case of Mootry v. State, 35 Tex. Cr. R. 457 [33 S. W. 877, 34 S. W. 126].” In that case the verdict of the jury read, “We, the jury, find the defendants guilty of murder in the first degree and fix their
In the still later case of Polk v. State, 35 Tex. Cr. R. 501, 34 S. W. 634, the same court, against a similar objection, upheld, construing the punishment as several and not joint, a verdict in words as follows: “We, the jury, find the defendants [naming them] guilty of murder in the first degree, and assess their punishment at life imprisonment in the state penitentiary.”
In Woodward v. State, 84 Ark. 119, 104 S. W. 1109, an Arkansas case which counsel for the state cite, the verdict was as follows: “We, the jury, find the defendants guilty in the second count as charged in the indict
It thus appears that the contention of the counsel for appellants finds no real support in these authorities to which they cite us. The only case in this state to which we are referred on the subject is that of Perry v. State, 149 Ala. 41, 43 South. 18, which likewise is not an authority on the proposition here, and that for two reasons: (1) Because the verbiage of the verdict, as to .the punishment, is different there from that here; there the language of the verdict made it a joint punishment, while here the language makes it several; and (2) because the nature of the punishment there inflicted is different from that here; there it was a fine only which either could pay, while here it is a sentence of imprisonment Avhich could not be satisfied by one’s serving the entire time. The verdict there was: “We, the jury, find defendants guilty as charged * * * and assess a fine of one hundred, dollars.” Clearly this was the assessment of only one fine to be paid by the defendants. Our Supreme Court, therefore, said: “The verdict was invalid since it failed to separately assess a fine against each offender. The reason is apparent, viz., that payment of the whole fine may be recovered from one of the
The correction of the verdict as made by the jury, upon being recalled by the court after their separation, is an immaterial correction and could have in no way prejudiced the rights of the defendants. — Watkins v. State, 133 Ala. 88, 32 South. 627; Noles v. State, 24 Ala. 672; Harrall v. State, 26 Ala. 52.
The only other alleged errors insisted upon are those claimed to have been committed by the trial court in its refusal to give certain instructions, separately requested in writing by the defendants. The first of these is refused charge No. 2, which we find to have been approved in Brown v. State, 118 Ala. 111, 23 South. 81. In three later cases our Supreme Court held, after reviewing the Brown Base, that while it was proper to give such an instruction in a case Avhere no testimony whatever was introduced by defendant, or where, if any was introduced, no part of it tended in any way to criminate him, yet that it was never proper to give such a charge in. any case where any part of the testimony, elicited from defendant’s witnesses, tended in any way
In a still later case, however, our Supreme Court, viewing the charge from another angle, condemned it in toto in a murder case (as is the case here), holding that it was bad, in that it required defendant’s acquittal, unless the jury believed beyond a reasonable doubt that he was guilty “as charged in the indictment” (that is, of murder), when in truth the law does not require them to acquit, although they may believe the defendant not- guilty of murder, provided they do believe him guilty of manslaughter. — Watts v. State (Sup.) 59 South. 273. See, also, McCoy v. State, 170 Ala. 10, 54 South. 428; Williams v. State, 161 Ala. 57, 58, 50 South. 59. The lower court, therefore, committed no error in refusing the charge in this case. The same authorities and the same principles as therein announced likewise justified the refusal of charge No. 4 in this case, though it was also approved in Brown v. State, supra.
The propositions of law asserted in refused charge No. 10 are fully covered in the given charges. This refused charge reads as follows: “The court charges the jury that, before they can convict the defendants, they
Refused charge 23, Avhile approved in Neilson v. State, 146 Ala. 683, 40 South. 221, Avas in the later case of Way v. State, 155 Ala. 52, 46 South. 273, held to be of such a character, on account of the use of the word “promptly” in it, as to justify its refusal. Besides, the proposition asserted in the charge appears to be fully covered by some of the given charges.
Refused charge No. 17, while also approved in Brown v. State, supra, and AAdiile apt in its A^erbiage as applied to a case'of circumstantial evidence, as that one probably was, is inapt in the use of the word “circumstance” when applied to a case as that here, Avhere the testimony relied on for conviction is all positive. — See, in connection, Bailey v. State, 161 Ala. 75, 49 South. 886.
Furthermore, the charge is to be condemned if we follow, as we should and as we will, the principles announced and applied by our Supreme Court in cases subsequent to Brown v. State, supra, to charges like that now in question, which pretermit a consideration by the jury of any criminating facts and circumstances developed on the examination of defendant’s witnesses, and which confine the jury-to the necessity of looking alone to the evidence introduced by the state as a foundation for a verdict of guilty. — Rigsby v. State, 152 Ala. 9, 44 South. 608; Welch v. State, 156 Ala. 112, 46 South. 856; Moss v. State, 152 Ala. 30, 44 South. 598. It like-Avise appears that the charge is also covered by some of the given charges.
Refused charge 19 was approved in Grane v. State, 111 Ala. 46, 20 South. 590, but must fall for reasons' pointed out in later decisions of our Supreme Court. It is faulty in that it refers to the jury the determination of matters of law, for, before they could know Avhether all “the necessary and material allegations of the indictment” Avere proved or not, it Avould be necessary for them to ascertain Avhat the “necessary and material allegations of the indictment” were, which is, of course, a question of laAv for the court. The charge is consequently bad for a failure to inform the jury Avhat are the “necessary and material allegations of the indictment.” — Andrews v. State, 159 Ala. 14, 48 South.
Refused charge 28 is a correct charge under the following authorities: Salm v. State, 89 Ala. 56, 8 South. 66; Gilmore v. State, 99 Ala. 154, 13 South. 536; McCoy v. State, 170 Ala. 10, 54 South. 428; Bailey v. State, 168 Ala. 4, 53 South. 296; Rosenberg v. State, 5 Ala. App. 196, 59 South. 367.
We are of opinion, however, that the proposition of law embodied in it are so fully covered by given charges as to justify its refusal by the court. It reads: “The court charges the jury that the innocence of defendant is presumed until his guilt is established by the evidence, in all the material aspects of the case, beyond a reasonable doubt, to a moral certainty; and it may also be said that evidence of guilt must be strong and cogent, and, Unless it is so strong and cogent as to show that defendant is guilty to a moral certainty, the defendant must be acquitted.” It will be observed that the first proposition embraced in the charge is the one as to proof necessary to overcome the presumption of innocence, which is covered by given charges Nos. 20 and 1, which read:
(20) “The court charges the jury that the legal presumption of innocence is overcome only by evidence of guilt which satisfies the mind of the jury beyond all reasonable doubt.”
(1) “The court charges the jury that the legal presumption of innocence is to be regarded by the jury in every case as a matter of evidence, to the benefit of which the accused is entitled, and as a matter of evidence it attends the accused until his guilt is by the evidence placed beyond all reasonable doubt.”
The next proposition embodied in the refused charge is as to Iioav strong and cogent must be the proof neces
(32) “The court charges the jury that, unless the state has shown the defendant’s guilt by the evidence beyond all reasonable doubt and to a moral certainty, then the jury should acquit the defendant.”
(31) “The court charges the jury that, before they can convict the defendant they must he satisfied to a moral certainty, not only that the proof is consistent with defendant’s guilt, but that it is wholly inconsistent with any other rational conclusion.”
(46) “The court charges the jury that a reasonable doubt may exist, though there is no probability of defendant’s innocence from the testimony; and if they have not an abiding conviction, to a moral certainty, of defendant’s guilt, then they should acquit the defendant.”
(18) “The court charges the jury that, unless the evidence excludes every reasonable supposition but that of defendant’s guilt, you must acquit defendant.”
(24) “The court charges the jury that, if from the evidence there is a probability of defendant’s innocence, then the jury should acquit defendant.” See, also, given charges numbered 74, 7, 69, 15, 21, and 22.
Befused charges 36 and 37 are so patently faulty that appellants’ counsel do not, in their brief, insist that there Avas any error in the refusal of either of them. We therefore deem it unnecessary to discuss them, but content ourselves Avith a citation of the authorities by which, if the charges are tested, they Avill be found bad. —Kirby v. State, 151 Ala. 66, 44 South. 38; Gordon v. State, 147 Ala. 42, 41 South. 847; Welch v. State, 156 Ala. 112, 46 South. 856; Andrews v. State, 150 Ala. 56, 43 South. 196; Moss v. State, 152 Ala. 30, 44 South. 598.
We are of opinion that charge 41 was properly re
Charge 64 was approved in Henson v. State, 112 Ala. 49, 21 South. 79, but that case has been expressly overruled in this particular by subsequent adjudications of the Supreme Court, which hold the charge defective for not defining the elements of self-defense. — Greer v. State, 156 Ala. 15, 47 South. 300. See, also, Lawson v. State, 155 Ala. 44, 46 South. 259; Gaston v. State, 161 Ala. 37, 49 South. 876; Miller v. State, 107 Ala. 42, 19 South. 37; Powell v. State, 5 Ala. App. 75, 59 South. 530.
Charge 65 was likewise properly refused. The burden is never upon the state to prove that the defendant was not free from fault in bringing on the difficulty, unless and until the defendant has first proved that he was in imminent peril, etc., and could not retreat without increasing that peril. — Pugh v. State, 132 Ala. 6, 31
Refused charge 68 was approved in Simmons v. State, 158 Ala. 11, 48 South. 606, and meets the criticisms pronounced against a similar charge in the following cases, to wit: Walker v. State, 153 Ala. 32, 45 South. 640; Rosenberg v. State, 5 Ala. App. 198, 59 South. 366; Roberson v. State (sup.) 57 South. 829; Bailey v. State, 161 Ala. 75, 49 South. 886. The court will not be put in error for refusing it in this case for the reason that it is fully covered by given charge No. 69, which is really more favorable to defendants than the refused charge. The refused charge (68) is as follows: “I charge you, gentlemen of the jury, that, if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendant’s guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit” — while given charge 69 is as follows: “I charge yon, gentlemen of the jury, that, if there is one single fact in this case proved beyond a reasonable doubt which is inconsistent with defendant’s guilt, then this is sufficient to raise a reasonable doubt of defendant’s guilt, and the jury should acquit defendant.” It thus • appears from a comparison of the two that the only difference between them is that the given one asserts that, if a single fact inconsistent with defendant’s guilt is “proved beyond a reasonable doubt/3 the jury must acquit, while the refused charge asserts that if a single fact, inconsistent with defendant’s guilt is “proved to the satisfaction of the jury/3 they must acquit. Clearly the refused charge requires a higher degree of proof of this “single fact” than the given charge does, for proof to “the satisfaction of the mind” is proof that relieves
Refused charge 76 was the affirmative charge, which the lower court was so clearly justified in refusing, under the facts of this case, that counsel for appellants do not discuss it in their brief. There was ample evidence to justify a submission to the jury of the question of defendants’ guilt and to sustain such finding. Tlfere was likewise sufficient proof as to venue to carry that question to the jury. — Pearson v. State, 5 Ala. App. 68, 59 South. 526; Williams v. State, 5 Ala. App. 112, 59 South. 528; Harrison v. Anniston, 156 Ala. 620, 46 South. 980; Tinney v. State, 111 Ala. 74, 20 South. 597; Dupree v. State, 148 Ala 620, 42 South. 1004; Glenn v. State, 157 Ala. 12, 47 South. 1034.
Refused charge No. 77 predicates an acquittal of the defendants unless the jury believe beyond a reasonable doubt “that the offense charged in the indictment” (that is, murder in the first degree) was committed in Dallas county, and was properly refused for the reason that it is misleading in that it was well calculated to lead the jury, who are laymen and not lawyers, to think that, although they might believe beyond a reasonable doubt that the homicide was committed in Dallas county, they could not convict the defendants at all, unless they further believe that that homicide was committed under such circumstances that it amounted to murder in the first degree, “the offense charged in the indictment.” — Watts v. State (Sup.) 59 South. 273; Williams v. State, 161 Ala. 58, 50 South. 59; McCoy v. State, 170 Ala. 10, 54 South. 428.
Counsel for appellants urge the proposition that the charges which were given at the request of the defendants and found here in the record proper cannot be looked to by this court for any purpose, since they are not incorporated in the bill of exceptions, Section. 5364 of the Code makes them a part of the record, and while they cannot be reviewed, or looked to for the purpose of reversing the trial court, unless they also appear in the bill of exceptions, yet they may be looked to, if found in the record proper, though they be not in the bill of exceptions for the purpose of comparing them with the refused charges and of ascertaining, in favor of the ruling of the trial court, if the propositions of law asserted in the refused charges are not also covered in the given ones. — Choate v. A. C. S. R. R. Co., 170 Ala. 598, 54 South. 507.
We have deemed it necessary to discuss, and have discussed, only those points which were insisted upon by defendants’ counsel. We do not find that the trial court has committed any reversible error, and the judgment of conviction is therefore affirmed.
Affirmed.