72 So. 558 | Ala. Ct. App. | 1916
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *34 Revenell Diamond was convicted of manslaughter and he appeals. Reversed and remanded.
The case was one of a fight in which defendant cut to death his cousin, the defendant being a boy of about 16 years, and the deceased a man about 35. The evidence for the state tended to show an unjustifiable homicide, and that for the defendant tended to show self-defense. The following are the charges referred to as being refused to the defendant:
(2) Appears.
"(3) The court charges the jury that before they can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and, unless the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance in his own interest, then they must find the defendant not guilty. *35
"(4) The court charges the jury that unless the evidence in the case is so strong and cogent as to exclude from the minds of the jury, each and every one, every reasonable supposition but that of guilt of the defendant, they should acquit him."
"(7) The court charges the jury that there is a legal presumption of innocence which is to be regarded as a matter of evidence by the jury to the benefit of which the accused is entitled, and as a matter of evidence it attends the defendant until his guilt is, by the evidence, placed beyond a reasonable doubt."
"(11) The court charges the jury that if they believe from the evidence that the defendant approached the deceased in a quiet and orderly manner, and with the honest purpose and intention to peaceably settle a matter of difference between deceased and defendant, and the deceased struck the defendant a blow or blows in the face, which blows were sufficient to engender sudden heat of passion, which was sufficient for the time being to dethrone the reason of the defendant and make him regardless of its admonition, they cannot find defendant guilty."
(16) Affirmative charge.
(17) Same. 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 written 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,
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. InLeonard v. State,
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: "Charges 9 and 10 should have *37
been given. A charge similar to these charges was held good inMitchell v. State,
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 inLeonard'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,
In Cunningham v. State,
In Troup v. State,
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 holdingHale 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,
(6) The cases of Burton v. State,
(7) In the recent case of Smith v. State,
(8) Charge 7 is correct and the court erred in its refusal. — Bryant v. State,
(9) Charge 11 is argumentative and invasive of the province of the jury.
Charge 11 is argumentative and invasive of the province of try jury.
Charges 16 and 17 were properly refused.
For the error pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.
(Ed. Note — This case was reviewed by the Supreme Court, on application of the State, and the writ denied.)