89 So. 48 (Ala. 1921), 3 Div. 463, Whittle v. State

Docket Nº:3 Div. 463
Citation:89 So. 48, 205 Ala. 638
Opinion Judge:SOMERVILLE, J.
Party Name:WHITTLE v. STATE.
Attorney:Robert H. Jones and L.B. Chapman, both of Evergreen, and Emmet S. Thigpen, of Andalusia, for appellant. J.Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Case Date:January 27, 1921
Court:Supreme Court of Alabama
 
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89 So. 48 (Ala. 1921)

205 Ala. 638

WHITTLE

v.

STATE.

3 Div. 463

Supreme Court of Alabama

January 27, 1921

Rehearing Denied May 5, 1921

Appeal from Circuit Court, Conecuh County; John B. Lee, Judge.

Booker T. Whittle was convicted of murder in the first degree, and he appeals. Affirmed.

Robert H. Jones and L.B. Chapman, both of Evergreen, and Emmet S. Thigpen, of Andalusia, for appellant.

J.Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SOMERVILLE, J.

The defendant was indicted and tried for murder in the first degree, and appeals from a judgment of conviction.

In his oral charge to the jury the trial judge instructed them as follows:

"Before the jury can convict the defendant, each one of the jury must believe beyond all reasonable doubt that the defendant is guilty. Yet it does not follow that the defendant should

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be acquitted unless each one of you believe beyond all reasonable doubt that the defendant is guilty. But, if one or several of you believe beyond all reasonable doubt that the defendant is guilty, and one or more of you entertain a reasonable doubt of his guilt, there would be no verdict, but a hung jury."

This instruction was unquestionably correct, and no exception was taken thereto. In further exposition of the subject, the judge then said:

"In other words, it takes 12 men to believe that he is guilty beyond a reasonable doubt before you can convict him, and it takes 12 men to believe that is not guilty beyond a reasonable doubt to acquit him; in other words, it takes 12 men to arrive at a verdict, and unless 12 men arrive at a verdict one way or another it is a hung jury or a mistrial."

Defendant duly excepted to all of the foregoing instruction down through the italicized portion. If it be conceded, for the argument, that the italicized clause was erroneous and prejudicial, yet, since the preceding clause was a correct statement of the law, the exception to the whole cannot be sustained. 4 Michie's Dig. 475, § 583, collecting the authorities.

But we think that even the italicized clause, though capable of misconstruction, is, when properly read and understood, entirely correct in its statement of the law. Its ambiguity lies in the possibly variant phrasings of the words used. Their proper allocation, as evidently intended by the judge, and in...

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