Bragg v. State

• Decision Date: 11 January 1938
• Docket Number: 4 Div. 332.
• Citation: 28 Ala.App. 305,183 So. 680
• Parties: BRAGG v. STATE.
• Court: Alabama Court of Appeals

183 So. 680

28 Ala.App. 305

BRAGG v. STATE.

4 Div. 332.

Court of Appeals of Alabama

January 11, 1938

Rehearing Denied March 8, 1938.

Affirmed on Mandate June 30, 1938.

Rehearing Denied Oct. 4, 1938.

Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.

John H., alias Johnnie, Bragg was convicted of first degree manslaughter, and he appeals.

Reversed and remanded.

Certiorari granted by Supreme Court in Bragg v. State (4 Div 20) 183 So. 682.

J. C Fleming and J. M. Rowe, both of Elba, for appellant.

A. A Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen for the State.

RICE Judge.

Appellant was convicted of the offense of manslaughter in the first degree and his punishment fixed at imprisonment in the penitentiary for the terms of ten years.

It was shown that he shot and killed one Horace Jackson; and that the killing occurred within the home of appellant.

The sole issue in the case was as to whether or not appellant acted, in shooting deceased, in "self-defense," as that term was minutely defined to the jury by the court.

The trial judge charged the jury, orally, among other things, as follows: "Now this indictment was read to you and the defendant interposed a plea of not guilty to it. This indictment you take out to the juryroom there with you so that you may refer to it if you care to, but that is its only office other than it is the mode adopted by law for bringing persons to trial on charges preferred by the grand jury of violations of the law. That is its only purpose; it does not go before you as evidence; it does not weigh anything; it does not create any presumption against the defendant, but on the contrary when the indictment was read to you and the plea interposed of not guilty, the law raised up a presumption of his innocence upon that plea and that presumption goes along with him throughout the trial, or until one or the other of the charges embraced in this indictment is established by evidence. The burden is on the State to prove the guilt of the defendant of one or the other of these charges mentioned as being embraced in this indictment, and the measure of proof, and that applies to all of them, or to either of them, is that each and every member of the jury shall be satisfied beyond a reasonable doubt from the testimony in the case of the defendant's guilt before they would be authorized to return a verdict of guilt in the case." (Italics ours.)

And also, as follows:

"Another rule is that you may entertain a reasonable doubt from any part of the evidence, but that doesn't mean that you take the State's evidence and decide the case alone on that, or that you take the defendant's evidence and decide it on that, but after a careful consideration of all the evidence, both for the State and for the defendant, if there arises in your mind a reasonable doubt, growing out of any part of it, then the defendant would be entitled to the benefit of such doubt and therefore, to an acquittal.

"* * * Now all of these charges I mentioned here as being in the indictment, have a legal definition, and they are made up of different elements and all of these elements are necessary to complete the offense, because the absence of any one of the elements which I will name as constituting a part of the offense would render the offense incomplete. All must have concurred at the time of this commission of the act charged against the defendant."

Likewise as follows: "Was the defendant free from fault? Well then, if you say he was free from fault that wouldn't excuse him; he would also have...