Brown v. State

• Decision Date: 02 March 1907
• Citation: 150 Ala. 25,43 So. 194
• Parties: BROWN v. STATE.
• Court: Alabama Supreme Court

43 So. 194

150 Ala. 25

BROWN v. STATE.

Supreme Court of Alabama

March 2, 1907

Appeal from Circuit Court, Colbert County; Joseph H. Nathan, Judge.

George Brown was convicted of murder, and he appeals. Reversed and remanded.

The record showed, after setting out the arraignment by reading the indictment put to the defendant and his plea of not guilty thereto, as follows: "It is ordered by the court on motion of the solicitor, the defendant, George Brown being present in person and by attorney, that the trial of this case be set for Wednesday, April 25, 1906. The number of jurors to be drawn was fixed by the court as 35. On the order of the court, the box containing the names of the jurors of Colbert county, Ala., was brought into the courtroom, and having the same well shaken, the presiding judge then and there, in the presence of the defendant, George Brown publicly drew therefrom 35 names, as follows." Here follows the list of 35 names. Then follows an order by the court to make out the list, and directing the clerk to issue an order directing the sheriff to summon these men to constitute the special venire. Then follow the orders of the court in reference to the service of the venire and indictment upon defendant.

In the introduction of the testimony, the undertaker, who was shown to have examined the wounds of the dead man, stated that there was a pistol shot which passed through deceased's right arm into his right side about two inches and then turned downward; that there was some shot in the back of the deceased, but that they were small shots, and hardly went into the skin. The witness stated that he found some old holes in his bones, where deceased had been shot before. On motion of the solicitor, the court excluded this testimony as to the old holes, and the defendant excepted. Robert Hook the brother of the deceased, testified that, on the morning before his brother died, deceased called him to the bed, and took him by the hand, and told him he knew he could not get well and that he was going to die. Deceased called Carrie Devinney to him also, and asked her to make him a cigarette, and told her that it would be the last one she would ever make for him. Upon this predicate, the dying declarations of the deceased were admitted in evidence over the objection of the defendant. The defendant offered to show that he went down and surrendered to a police officer just after the killing occurred; but the court, on motion of the state, excluded this evidence.

The defendant requested the following charges, which were refused: "(6) Gentlemen of the jury, before you can convict the defendant, the hypothesis of his guilt should flow naturally from the facts proved and be consistent with all of them." "(11) Before you can convict the defendant, you must be satisfied to a moral certainty that not only the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational supposition, and that, unless the jury is so convinced by the evidence of the defendant's guilt that you would each venture to act upon that decision in matters of the highest concern and importance to your own interest you must find the defendant not guilty." "(18) A reasonable doubt is that want of repose and confidence which an honest man has in the correctness of a conclusion which he is about to make after he has given the question under consideration his best thought." "(25) If, after subjecting the facts of this case to the test of reason, there is still a doubt of the guilt of defendant, the jury should acquit him." "(42) The statements of the prosecuting attorney, read from the Bible, are not evidence in this case, or the law in the case. (43) That you will not try this man according to the Bible, but according to the law of the state of Alabama as it may be given in charge to you by the court." "(45) I charge you, gentlemen of the jury, that dying declarations are to be considered with great caution. (46) Evidence consisting of oral statements or declarations should be considered by the jury with great...