Owens v. StateOwens v. State
delivered the opinion of the court.
It wаs error to permit the district attorney to testify that no inducement had been offered Matthis to testify against Owens. Matthis had expressly stated, himself, when asked, that no inducement had been held out. The only possible effect of this testimony was to permit the state to bolster thе testimony of its witness, Matthis, in this unwarranted way. This has been expressly condemned twice by this court. Madden v. State,
It was error to refuse the instruction (numbered 15) asked by the defendant. The idea presented in this instruction is that, if Lester killed the officers, not because of anything Owens had told him to do, but merely and solely to protect Matthis, the appellant would not be responsible for that; and the testimony of Matthis furnished the defendant with a basis on which to predicate his right to this instruction. The fourteenth instruction granted for the defendant does not cover this precise proposition, and the refused instruction, being a correct proposition of law, ought to have been granted. The defendant has the right to have the jury instructed upon any theory that the testimony may reasonably present. It must be admittеd that Matthis’ testimony was certainly sufficient to justify the giving of this instruction. As to the truth or falsity of Matthis’ testimony in this connection, we, of course, make no comment.
The jury first returned into court this verdict: “We, the jury, find the defendant guilty as charged, and ask for the mercy of the court.” This clouded verdict needed to be cleared up, as held in Smith v. State,
Hollowing this announcement, in
To show what an utterly clouded verdict it was, we have, on tbe one band, tbe action of tbe court directing tbe verdict to be entered in tbe form we have just given, and sentencing tbe prisoner upon the verdict to imprisonment in tbe penitentiary for lifе; and we have tbe district attorney, on tbe other band, actually excepting to tbe action of tbe court in not sentencing tbe prisoner to be banged. It is plain that tbe court did what be did because be thought tbe legal effect of tbe -verdict was imprisonment for life. It is also plain that tbe district attorney based bis exception upon tbe idea that tbe legal effect of tbe verdict was a simple finding of guilty of murder, upon which tbe death penalty should follow. No more conclusive proof of tbe utterly clouded state of this verdict could be furnished than tbe spectacle of tbe judge and tbe district attorney disagreeing as to what tbe verdict meant. Tbe only strange thing is bow there could be any difference of opinion as to tbe real nature of tbe verdict. It seems to us perfectly plain that tbe jury bad not agreed upon tbe number of years, differing about that from twelve months to life imprisonment, and hence that they bad really reached no legal verdict upon which tbe judgment of tbe law could follow. It is tbe duty of tbe jury to sentence tbe prisoner to life imрrisonment, where that is to be done- — -not tbe court. Tbe learned judge below was entirely correct in refusing to enter tbe death penalty when every member of tbe jury said that was not bis verdict; but be erred in treating tbe verdict as a sentence for life imprisonment at tbe bаnds of tbe jury. Tbe matter was of exceedingly simple solution. It would have been perfectly proper for him to have taken from tbe charges for tbe state tbe one as to tbe form of their verdict,
We are of the opinion that this verdict was not a legal verdict— not one upon which the judgment of the court cоuld have been legally pronounced. The precise case was decided in Weatherford v. State,
What is said in this case about thе entire punishment being in the discretion of the jury, under the section cited from the Alabama code, applies perfectly to that part of a sentence in a murder case under our law which fixes the punishment at imprisonment in the penitentiary for life. Whether that shаll be the sentence is for the jury, and not the court, to say.
Two things were made certain by the testimony elicited from the jurors in this case: First, that not a single juror meant by his verdict that the death sentence should be imposed; second, that ten of the jurors meant he should not be imрrisoned in the penitentiary for life. We think it is equally certain that, not meaning he should be hung, and differing about how long he ought to be imprisoned in the penitentiary — from a twelve months’ period to a life period' — the jury had never really agreed upon any verdict. Had the court pursued the course indicated, there would have been a verdict upon which judgment could have been legally pronounced, or there would have been a mistrial. It was the duty of the court, under the circumstances, to have required the jury to go again to their rоom, read the charge as to the form of the verdict, and then return — if they agreed — a legal verdict in proper form.
Reversed and remanded.