58 So. 250 | Ala. | 1912
The defendant was indicted for the murder of Rufus Howard, by shooting him with a gun or pistol. The undisputed evidence showed the killing to have occurred as alleged. There was, however, evidence tending to show self-defense. The jury decided this issue against the defendant, and imposed the punishment of 25 years’ servitude in the penitenti
The court, at the request of the prosecuting attorney in writing, charged the jury, among other things, as follows : “I charge you, gentlemen of the jury, that when a defendant attempts to prove self-defense, the burden of proof is upon him to prove it successfully.” We are unable to see why there was any reversible error in the giving of this charge. It seems to us to be unquestionably correct, unless the last Avord in it, “successfully,” could be said to make it incorrect. In fact, this is the only word Avhich counsel for defendant insist renders it bad; but Ave do not think it renders it so bad, if bad at all, as to make the giving of it reversible error. It is conceded, of course, that the burden is on the defendant to prove self-defense, unless the evidence of the state proves it for him. The charge limits the proposition of law announced to cases where the defendant “attempts to prove self-defense.” Of course, if he is not successful in his attempt, the attempt must fail. If the attempt fails, then the defense fails, unless the state has proved it, or generated a reasonable doubt in the minds of the jury as to the self defense.
If the charge was susceptible of this construction, or was open to the criticism of misleading the jury (but we do not intimate that it was), this tendency could and should have been corrected by an explanatory charge— which was not requested. Moreover, this record shows that the charge could not have had any such tendencies in this case because the only evidence offered which tended to show self-defense was offered by the defendant himself or his witnesses.
The mere fact that the deceased had a pistol when killed, and that he and the defendant had had a previous
Charges similar to this have been frequently given, and held proper, in murder trials, when applied to the question of alibi. If good as to alibi assuredly they ought to be held good as to self-defense. Our decisions have varied somewhat, as to the burden of proof, the shifting of the burden of proof, and the sufficiency of the proof, in cases of alibi.
“The pendulum has probably swung too far in both directions; the mean between these two extremes is probably correct which is as follows: ‘Evidence to support an alibi should be weighed, considered by the jury just as other evidence and in connection with all the other evidence, and if upon consideration of the whole evidence there is a reasonable doubt of defendant’s guilt, he should be acquitted.’ But charges which single out a part of the evidence and predicate an acquittal upon that part, or which are mere arguments of counsél, though they may be abstractly correct so far as they go, are properly refused by the trial court. — Hatch v. State, 144 Ala. 50, 40 South. 113. A charge as follows: ‘The defendant sets up an alibi in this case, and the burden of proof is not changed when he undertakes to prove it, and if by reason of the evidence in relation to such alibi you should entertain a reasonable doubt as to the defendant’s guilt, he should be acquitted, although you may not be able to find that the alibi has been fully proven’ — held good, and that it was error to refuse it.— Hatch v. State, 144 Ala. 50, 40 South. 113. Dowdell
“An alibi is not in the strict and accurate sense, a special defense, but a traverse of the material averment in the indictment that the defendant did, or participated in, the particular act charged, and is comprehended in the general plea, ‘Not guilty.’ — Albritton v. State, 94 Ala. 76, 10 South. 426. Because susceptible of easy fabrication and often attempted to be sustained by perjury whereby the accused endeavors to break the network of facts and circumstances surely bringing him to conviction and punishment, the proof of an alibi is, and should be, subjected to careful scrutiny. Id.” — 1 Mayf. Dig. 33.
“A charge as to alibi was as follows: ' ‘If you believe from the evidence in this case that the plea of an alibi was not interposed in good faith or that the evidence to sustain it is simulated, false, and fraudulent, then this is a discrediting circumstance to which you may look in connection with all the other evidence in determining the guilt or innocence of the defendant’ — was held proper. — Tatum v. State, 131 Ala. 32, 31 South. 369. See Albritton v. State, 94 Ala. 76, 10 South. 426; Beavers v. State, 103 Ala. 36, 15 South. 616.” — 5 Mayf. Dig. 22.
The Supreme Court of Massachusetts, in the case of Commonwealth v. Webster, 5 Cush. 324, 52 Am. Dec. 711, said: “In the ordinary case of an alibi, when a party charged with a crime attempts to prove that he was in another place at the time, all the evidence tending to prove that he committed the offense tends in the same degree to prove that he was at the place when it was committed. If therefore the proof of the alibi does not outweigh the proof that he was at the place when the offense was committed, it is not. sufficient.”
Counsel for defendant in a very able and earnest brief, insist that these decisions are wrong and should be overruled. We cannot agree with counsel in this contention; but we have discussed the question at some length, out of deference to the earnest insistence of counsel.
It' is practically conceded that, if the charge in question is good as to an alibi, it is good as to self-defense.
Affirmed.