41 So. 847 | Ala. | 1906
Lead Opinion
-The defendant in this case was convicted of the crime of murder in the first degree and the punishment fixed at death.
The first insistence of the defendant is that the court erred in striking from the files, on motion of the solicitor, the defendant’s plea of “not guilty, by reason of insanity.” It appears that w-hen the defendant Avas arraigned he had no attorney, and the court appointed two members of the bar to- defend him, and the plea of “not guilty’ aaus interposed . Wlum the day for trial arrived, after the jury had been empaneled, the indictment read, and the defendant pleaded, “as he had pleaded before, not guilty,” counsel for the defendant asked leave of the court to file the special plea of “not guilty, by'reason of insanity,’ ’and the court refused to alloAV the same. This is the statement in the record, but in the bill of exceptions it is stated that, “after the indictment was read to the jury, the defendant’s counsel asked leave to file said plea, which plea was duly filed as shoAvn by the record in this case,’’ and that the solicitor then filed a motion (Avhieli is set out) to- strike said plea from the file, the grounds being, first, “because said special plea aaus not filed at the time of arraignment of defendant,” and, second, “because said specikl plea Avas not filed until the. special jury Avas savoiu and impaneled and the indictment had been read to the, jury,” which motion Avas sustained. The only statement made to the court by the at tornevs for the defendant/was that at the time of the arraignment the attorneys Ay ere entire strangers to the de
The court properly allowed the witness Susie Port to testify. . She was 12 years old, and showed sufficient knowledge of the obligation of an oath to testify. This she showed by her other answers, notwithstanding she did not understand the question when put in the shape of asking her if she “knew the nature of a judicial oath.
As to her being young when the occurrence took place, and as to the memory of them, these were matters which went merely to the weight of her testimony. — Kelly v. State, 75 Ala. 21, 51 Am. Rep. 422; Walker v. State, 134 Ala. 86, 32 South. 703.
There was no error in the refusal to give charge 1 (the general charge) on request of the defendant, as there was evidence sufficient to warrant a verdict of guilty.
As to the refusal to give charge 4, 'it, is sufficient to justify the refusal that the evidence in this case was not entirely circumstantial, and the charge was misleading.
Without noticing'the elliptical nature of charge 6, requested by the defendant, it was substantially covered by charges 5, 7, 10 1-2 and 11, given on request of defendant. \
There was no error in"the refusal to give charge 9, requested by the defendant.-. The charge expresses the opposite of what was doubtless intended. Of course, it cannot, he said that unless the jury cannot feel an abiding conviction, they should find the defendant not guilty. That, would be predicating a. conviction on the jury not having the abiding conviction of guilt. The “unless” should have been “if,” or the,- “not” left out.
Charge 14, requested by tile defendant, was properly refused, as it uses the expression “all doubt” in.place of “a reasonable doubt.” \
Charge 18, besides being elliptical, was properly refused, as the killing in this ease was either mui'der or nothing; the only defense being a denial that the defendant killed the child. — Hunt v. State, 135 Ala. 1, 8, 9, 33 South. 320.
Charge 19 was properly refused. — Rogers v. State, 117 Ala. 9, 13, 15, 22 South. 666; Amos v. State, 123 Ala. 50, 54, 26 South. 524; Nevill v. State, 133 Ala. 99, 105, 32 South. 596.
Charge 20 was properly refused. This charge is in accordance with the views expressed by the Massachusetts Supreme Court, in explaining the nature of a reasonable doubt; but under our decisions it requires too high a degree of proof.' — Commonwealth v. Webster, 5 Cush. (Mass.) 295, 320, 52 Am. Dec. 711; Griffith v. State, 90 Ala. 583, 588, 8 South. 812.
Charge 21 was properly refused. A presumption is a conclusion drawn by the law, and has no relation to the condition of mind produced by proof. — 23 Am. & Eng. Ency. Law, p. 967.
Charge 22 was properly refused. It is not the law that circumstantial evidence “is wholly inferior in cogency, force, and effect to direct evidence.” — Mickle v. State, 27 Ala. 20; Faulk v. State, 52 Ala. 415; Bland v. State, 75 Ala. 574; Thornton v. State, 113 Ala. 43, 21 South. 356 59 Am. St. Rep. 97.
Charge D was also properly refused, as there is no authority for drawing such distinctions between circumstantial and direct evidence. Besides, it was misleading, as as there was direct evidence in this case. Authorities supra.
Charge A was properly refused. The court was not called upon to make such an invidious distinction as to this witness. It was for the jury to say what weight her testimony was entitled for.
Charge O was properly refused. There was evidence
The judgment of the court is affirmed.
Rehearing
On Rehearing.
On rehearing Justices Tyson and Stmpson are of opinion that charge 15, requested by the defendant, should have been given; but the majority of the court adhere to the original opinion, on the ground that the jury may have been “misled by it into an erroneous conclusion.” — Bay Shore R. R. v. Harris, 67 Ala. 6, 9; Gilmore v. State, 99 Ala. 154, 157, 160, 13 South. 536; Adams v. State, 115 Ala. 90, 91, 22 South. 612, 67 Am. St. Rep. 17; Bodine v. State, 129 Ala. 107, 112, 29 South. 296.
Motion for rehearing overruled.