Diamond v. State, 72 So. 558

BROWN, J.

The only question presented for review arises' from the refusal by the trial court of certain written charges requested by the appellant. Immediately following these refused charges as set out in the bill of exceptions occurs the following statement: “The presiding judge then gave at the request of the defendant the following charges, which were read to the jury. (The clerk will here set out the charges.)

“I have made thorough search for the charges given at the request of the defendant and have been unable to find them.

“W. H. Jones, Clerk.”

It is thus affirmatively shown on the record that special writ- . ten charges, other than those refused, requested by the defendant, were given by the court and read to the jury.

(1-4) It is well settled that the-burden is on the defendant to affirmatively show error (Smith v. State, 183 Ala. 10, 62 South. 864); that no duty rests upon a trial court to give duplicates of charges already given, and that it is not error to refuse such duplicate charges (Watkins v. State, 133 Ala. 88, 32 South. 627; Wildman v. State, 139 Ala. 125, 35 South. 995) ; that every reasonable presumption will be indulged in favor of the correctness of the ruling of the trial court, and the presumption of correctness will prevail unless overturned by affirmative showing on the record to the contrary. — Sanders v. Steen, 128 Ala. 633, 29 South. 586; Clardy v. Walker, 132 Ala. 264, 31 South. 78; Sanders v. Edmonds, 98 Ala. 157, 13 South. 505; Webb v. Ballard, 97 Ala. 584,12 South. 106; Donaldson v. Wilkerson, 170 Ala. 507, 54 South. 234; Harper v. State, 109 Ala. 28, 19 South. 857. In Sanders v. Steen, supra, the Supreme Court, in refusing to review the trial court for giving the affirmative charge in favor of the plaintiff in that case, said: “The bill of exceptions does not purport to set out all the evidence. Where this is the case, under the uniform rulings of this court, the presumption will be indulged that there was evidence before the lower court which authorized the giving of it. Non constat one of the plaintiff’s replications was proven.”

It is here insisted by the Attorney General, in view of the showing in this record, that it is. just as reasonable to presume that the trial court refused the charges complained of by appellant for the reason that the same principles of law were embodied in other charges given at his instance, and that error is not affirmatively shown. While we recognize the force of the Attorney General’s position, the question has been expressly ruled to the contrary in Smith v. State, supra.

(5)- This brings us to a consideration of the charges requested by the defendant and refused by the court. In Leonard v. State, 150 Ala. 89, 43 South. 214, the trial court refused, among others, charges numbered 9 and 10, which we here set out. Charge 9: “The court charges you, gentlemen of the jury, that if any individual juror is not convinced of the defendant’s guilt beyond a reasonable doubt and to a moral certainty, you cannot convict.”

Charge 10: “The court charges you, gentlemen of the jury, that each juror is required to be satisfied of guilt of the defendant beyond a reasonable doubt before they are authorized to find a verdict of guilty, and each juror must be separately and segregrately so satisfied to support a conviction.”

The court, in disposing of the questions presented by the refusal of these charges, said: “Chargés 9 and 10 should have been given. A charge similar to these charges was held good in Mitchell v. State, 129 Ala. 23, 30 South. 348.”

The charge in Mitchell’s Case we find in these words: “The court charges the jury that before they can convict the defendant, the evidence must be so strong as to convince each juror of his guilt beyond reasonable doubt; and,-if after considering all the evidence a single juror has a reasonable doubt of the defendant’s guilt arising out of any part of the evidence, then they cannot convict him.”

This charge goes no further than to assert the doctrine of a unanimous verdict and the doctrine that a reasonable doubt may arise out of any part of the evidence after a consideration of the whole evidence by the jury, while charge 10 in Leonard’s Case goes further than to assert the doctrine of a unanimous verdict, and has a tendency “to inculcate the idea that the conclusion of each juror shall be reached and adhered to without the aid of that consideration and deliberation with his fellows which the law intends shall take place in the jury room.”

In view of the fact that the court disposed of these two charges in a group and the holdings hereafter to be .noticed, it is evident that the vice above pointed out was overlooked in that case. — McCoy v. State, 170 Ala. 15, 54 South. 428. In Hale v. State, 122 Ala. 89, 26 South. 237, in passing upon a charge asserting the same proposition, to wit, that the law requires a unanimous verdict, the court speaking by McClellan, C. J., said: “Several charges asked by defendant bearing a similitude to charge 7, refused by the circuit court to this defendant, have recently been brought under review in this court. Some of them have been held bad and others good, depending upon whether the particular charge under consideration asserted simply and only that the defendant should not be convicted so long as any one of the jurors had a reasonable doubt of his guilt. If it was clear to this intent and did not tend to mislead the jury to an acquittal upon a reasonable doubt of one or any number of the jurors less than the whole number, nor to inculcate the idea that the conclusion of each juror should be reached and adhered to ‘without the aid of that consideration and deliberation with his fellows which the law intends shall take place in the jury room,’ nor to render each juror the keeper of the consciences of his fellows, nor involve other misleading tendencies, the charge has been held to be good, and if it went beyond this, it has been disapproved.”

In Cunningham v. State, 117 Ala. 59, 23 South. 693, the court, speaking through Brickell, C. J., said: “Charge numbered 7, requested by the defendant in the present case, is as follows: ‘If there be one juryman who believes the state has not proven the defendant guilty beyond a reasonable doubt, and to a moral certainty, then this juryman should not consent to a verdict of guilty.’ Aside from the inartificial manner in which the charge is drawn, it is vicious in that it is calculated to impress the mind of a juror with the idea that his verdict must be reached and adhered to without the aid of that consideration and deliberation with his fellow jurors which the law intends shall take place in the jury room.”

In Troup v. State, 160 Ala. 125, 49 South. 332, charge 2 was: “I charge you, gentlemen of the jury, before you can convict the defendant, that each on.e of you must believe from the evidence and beyond all reasonable doubt that defendant was the man who traded the mule in controversy to Mr. Preston, and, if either member of the jury have a reasonable doubt that the defendant was the man who traded the mule, then it is the duty of such juror to so find.”

The court, speaking by Sayre, J.: “Charge 2 does more than assert that unanimity among jurors as to belief of guilt beyond a reasonable doubt is necessary to a conviction. It asserts the duty of a single juror who doubts to find in accordance with his doubt, and thus, in effect, makes each the keeper of the consciences of his fellows” (citing in support of this holding Hale v. State, supra).

Charge 2 in this case is in this language: “The court charges the jury that before they would be authorized to return a verdict of guilty each juror is required to be satisfied of defendant’s guilt beyond a reasonable doubt and each juror must separately and segregately be so satisfied to support a conviction.” '

It requires no argument to show that this charge is subject to the vice that it does more than assert the doctrine of a unanimous verdict and has a tendency “to inculcate the idea that the conclusion of each juror should be reached and adhered to without the aid of that consideration and deliberation with his fellows which the law intends shall take place in the jury room,” and was properly refused. — Troup v. State, 160 Ala. 125, 49 South. 332; Hale v. State, 122 Ala. 89, 26 South. 236; Cunningham v. State, 117 Ala. 59, 23 South. 693.

(Ed. Note — This case was reviewed by the Supreme Court, on application of the State, and the writ denied.)

(6)" The cases of Burton v. State, 107 Ala. 109, 18 South. 284, and Brown v. State, 108 Ala. 18, 18 South. 811, cited by appellant’s counsel to sustain charge 3 refused to the defendant, have been expressly overruled and charges of this class condemned.— Jones v. State, 181 Ala. 63, 61 South. 434; Shelton v. State, 144 Ala. 106, 42 South. 30.

(7) In the recent case of Smith v. State, 197 Ala. 193, 72 South. 316, a charge of the same class as charge 4, refused in this case, was condemned, and all cases holding such charges good were overruled. See, also, Richardson v. State, 191 Ala. 21, 68 South. 57.

(8) Charge 7 is correct and the court erred in its refusal.— Bryant v. State, 116 Ala. 445, 23 South. 40; Bailey v. State, 168 Ala. 4, 53 South. 296, 390; Chaney v. State, 178 Ala. 44, 59 South. 604.

(9) Charge 11 is argumentative and invasive of the province of the jury.

Charge 11 is argumentative and invasive of the province of tre jury.

Charges 16 and 17 were properly refused.

For the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Case Details

Case Name: Diamond v. State

Court Name: Alabama Court of Appeals

Date Published: Jun 30, 1916

Citations: 72 So. 558; 1916 Ala. App. LEXIS 99; 15 Ala. App. 33

Court Abbreviation: Ala. Ct. App.