Whittle v. State
| Decision Date | 27 January 1921 |
| Docket Number | 3 Div. 463 |
| Citation | 205 Ala. 638,89 So. 48 |
| Parties | WHITTLE v. STATE. |
| Court | Alabama Supreme Court |
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.
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:
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 harmony with the other portions of his charge, may be indicated as follows: "And it takes 12 men to believe...
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Scott v. State
...thereon before the trial court. White v. State, 209 Ala. 546, 96 So. 709; Charley v. State, 204 Ala. 687, 87 So. 177; Whittle v. State, 205 Ala. 638, 89 So. 48; Johnson v. State, 205 Ala. 665, 89 So. 55; v. State, 218 Ala. 658, 120 So. 147, and authorities. In the cases of Roan v. State, 22......
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White v. State
... ... question thereupon was raised before the trial court, and, in ... the absence of any such question, such proceedings are upon ... appeal presumed to have been regular and legal. Charley ... v. State, 204 Ala. 687, 87 So. 177; Whittle v ... State, 205 Ala. 638, 89 So. 84; Johnson v ... State, 205 Ala. 665, 89 So. 55 ... It is ... recited that the defendant waived the drawing and subp naing ... of a special venire of jurymen for the trial of this cause ... The defendant had the right to waive a special venire ... ...
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Anders v. State, 8 Div. 574
...some of it is correct, and hence his exception would have been without merit. Treadwell v. State, 168 Ala. 96, 53 So. 290: Whittle v. State, 205 Ala. 638, 89 So. 48. In Berry v. State, supra [209 Ala. 120, 95 So. 455], the trial court instructed the jury in part as follows: 'The law presume......