Campbell v. State

• Citation: 62 So. 57,182 Ala. 18
• Parties: CAMPBELL v. STATE.
• Decision Date: 10 April 1913
• Court: Supreme Court of Alabama

62 So. 57

182 Ala. 18

CAMPBELL v. STATE.

Supreme Court of Alabama

April 10, 1913

Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.

Will Campbell was convicted of murder in the first degree, and he appeals. Affirmed.

The facts relative to the motion and evidence sufficiently appear in the opinion. The following charges were refused to the defendant:

"A. If there is one single fact proved to the satisfaction of the jury which is inconsistent with defendant's guilt this is sufficient to raise a reasonable doubt, and the court should acquit."

C. Same as A.

"F. If, after a consideration of all the evidence, or any part thereof, the jury believe there is a probability of defendant's innocence, it is your duty to acquit.

"G. If, upon a consideration of all the evidence, there is a reasonable doubt arising out of any part of the evidence, the jury should find the defendant not guilty."

"D. The burden is on the state to prove to your satisfaction, and to a moral certainty, that a crime has been committed, and also that the defendant committed, or participated in the commission of, such a crime; and if, under the evidence there exists in your mind a reasonable doubt as to whether the state has met the burden of proof which the law requires in either of said respects, it will be your duty to find a verdict of not guilty."

"I. If, upon considering the whole evidence, there remains one fact or circumstance in the evidence that you cannot reconcile with the defendant's guilt, it will be your duty to acquit.

"J. A witness who gets a part or all of a reward offered for the arrest and conviction of the defendant, such fact goes to his credibility, and it is for the jury to say the amount of credence, if any, they give such witness.

"K. The jury must be satisfied clearly, fully, and conclusively and to a moral certainty, before they can convict."

"N. If you are not satisfied beyond all reasonable doubt and to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the guilt of defendant Campbell, then you should find him not guilty, and it is not necessary to raise a reasonable doubt that the jury should find from all the evidence a probability of defendant's innocence, but such doubt may arise even when there is a probability of his innocence from the testimony; and if the jury have not an abiding conviction to a moral certainty of his guilt, it is your duty to acquit."

O. Based on a belief or conviction of the jury that would cause them to act upon such conviction in matters of the highest concern and importance to their own interest.

John W. Inzer, of Ashville, and Inzer & Inzer, of Gadsden, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

The spirit of the law is stronger than its letter, but we think that under both the letter and the spirit of our laws the motion to dismiss this appeal must be overruled.

1. Articles 1, 2, and 3, of chapter 162 of the Code of 1907, being sections 6243-6266 of said Code, are designed to regulate the matter of appeals and the granting of writs of error in criminal cases, and are intended, except as otherwise shown in said Code, to completely cover said subjects. There is nothing in any of the said articles which in any way impinges upon the power of this court to adopt reasonable rules to regulate appeals in such cases, and, of course, said articles are to be read in connection with the rules of this court.

When a defendant is indicted for a capital offense, and is unable to employ counsel, the trial court is required to appoint not exceeding two attorneys to represent him in that court. Code 1907, § 7839. The above section does not authorize the trial court to appoint counsel to represent a defendant who is indicted for a capital offense in this court, or in the Appellate Court, and there is no statute which requires a trial court to appoint counsel to represent, in the trial court, any defendant who stands indicted in that court for any offense for which he may not be punished capitally.

Under the provisions of an act entitled, "An act to provide bail pending an appeal in all felony cases where the defendant is sentenced to the penitentiary for a term of five years or less," approved April 22, 1911 (Pamp.Gen.Acts, 1911, p. 626), a defendant may, in such a case, be released on bond, provided he is able to make the necessary bond, and remain out of jail, in the custody of his bondsmen, pending his appeal. In many such cases the defendants are, of course, unable to make the required bond, and such defendants, as well as other defendants in felony cases, must necessarily remain in jail pending their appeals. Many such defendants have no counsel, and in grave cases they are frequently and properly kept in isolated cells, and if they are permitted to see any one, the interview is granted through the grace, and probably within the hearing of, the jailer. It must therefore, at times at least, occur that a defendant who has been convicted of a grave felony can do nothing to bring his case to this court for review except, when brought in to be sentenced by the trial judge, to pray an appeal. For this reason section 6249 of the Code provides that where any question of law is reserved in a case of felony, and it shall be made known to the court that the defendant desires to take an appeal to the Supreme Court, judgment must be rendered against the defendant, but the execution thereof must be suspended pending the appeal. For the same reason section 6250 provides that when such question is reserved in a case of misdemeanor, and it shall be made know to the court that the defendant desires to take an appeal to the Supreme Court, judgment must be rendered on the conviction, but the execution thereof must be suspended pending the appeal, etc.

For the same identical reason section 6255 of the Code provides that when the execution of the judgment of conviction has been suspended, or an appeal has been taken, in a criminal case, "it is the duty of the clerk of the court in which the case was tried to make out a full and accurate transcript of the record, attach his certificate thereto, and transmit it to the clerk of the Supreme Court within twenty days thereafter; but when time is allowed for signing a bill of exceptions, such transcript must be made out and forwarded within twenty days from the signing of such bill of exceptions, or, if such bill is not signed and filed, such transcript must be made out and forwarded within twenty days after the expiration of the time so allowed."

For the same identical reason section 6264 of the Code provides that, in criminal appeals, "no assignment of errors or joinder in errors, is necessary; but the court must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands."

A defendant who has taken an appeal from the judgment of conviction of a trial court, and who is in jail, is frequently helpless, and he is also in custodia legis.

While the right to appeal is purely a creature of our statutes, the Legislature, by adopting the above provisions of our Code, clearly indicates the legislative purpose that such right shall not, in any criminal case, become a mockery, but that the right shall be substantial, and that this court shall see to it that a defendant who has been convicted in a criminal case, and who has reserved a question of law for the consideration of this court, and who prays an appeal, shall be accorded the privilege of having the legal questions presented by his record properly passed upon. "An appeal is 'taken,' within the meaning of our statute, when the party desiring to prosecute it has complied with the conditions upon which the law gives the right." Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241.

2. In the instant case the defendant was convicted of murder in the first degree, and was, on the 4th day of May, 1912, sentenced by the trial court to the penitentiary for life. The defendant, having reserved certain questions of law for the consideration of this court, on the said day, at the time of his said sentence, prayed an appeal to this court. Under the law the defendant had 90 days within which to present to the presiding judge his bill of exceptions, and under the law the presiding judge had 90 more days within which to sign the bill of exceptions. The defendant, in fact, presented his bill of exceptions to the presiding judge on June 23, 1912 about a month and a half after praying the appeal, and the presiding judge signed the bill of exceptions on September 6, 1912, which was less than 90 days after it had been presented to him for his signature. The first call of the defendant's division, after his conviction, in this court occurred on May 27, 1912, 22 days after his said conviction. This court adjourned, by operation of law, on the last day of June, 1912, after the defendant had presented to the presiding judge the bill of exceptions, but long before it was signed by said judge. The next call of the defendant's division was had in this court during the week commencing January 13, 1913, and the transcript in this case was filed in this court before noon of that day. Under the statute--section 6255 of the Code--above quoted, it was the duty of the clerk of the trial court to forward, within 20 days after the presiding judge signed the bill of exceptions, the transcript in the defendant's case to this court, but the transcript was filed in this court at the time above stated. Under the above facts there has been no discontinuance of the defendant's case. Rule 42 of this court provides that "upon satisfactory excuse being shown for the delay, the...