Carwile v. State

• Decision Date: 18 April 1905
• Citation: 39 So. 220,148 Ala. 576
• Parties: CARWILE v. STATE.
• Court: Alabama Supreme Court

39 So. 220

148 Ala. 576

CARWILE v. STATE.

Supreme Court of Alabama

April 18, 1905

Appeal from Circuit Court, Marshall County; J. A. Bilbro, Judge.

"To be officially reported."

E Monroe Carwile was convicted of murder in the first degree and he appeals. Reversed.

A list of 50 persons were drawn for the defendant's trial. Subsequently on the same day the indictment was quashed, and a new indictment preferred for the same offense. Over the objections and exceptions of the defendant the court proceeded to draw another and different list of different persons for the trial of this cause. The evidence for the state tended to show that the deceased died on November 18 1903, as the result of a gunshot wound inflicted in the head that the defendant was seen in a buggy with the deceased a few minutes before the wound was inflicted, and that defendant owned and had his shotgun with him; that shortly afterwards a gun was fired from the direction of the buggy, and the buggy in which defendant and deceased were riding came rapidly down the road, and before the team could be stopped Snow's body fell out; that the defendant came up just as the horses were stopped; that the deceased wore an overcoat at the time of his death, and was in the habit of carrying a billbook in his inside breast pocket, and the billbook was found about 30 feet from the road, and papers were scattered on the road along the route of the buggy. It was also shown that the deceased held a mortgage on the crop, stock, and other personal property of the defendant, and that the defendant had endeavored to sell corn covered by the mortgage, and that the mortgage held by deceased was produced by defendant at the inquest held by the coroner over the body, and defendant claimed to have paid it to Snow on the morning of the killing near the point where the shot was fired that killed Snow. The hat of deceased was found a short distance from the road. One Amos testified for the state that he arrested the defendant pursuant to instruction given him by the coroner, and while in his custody a brother of defendant engaged in a conversation with the latter, and defendant told him of the killing, claiming it to have been accidental, and mentioned the note which he had produced at the coroner's inquest; that prior to the conversation no threats or inducements were made or held out to the defendant, nor did the witness engage in the conversation with the defendant and his brother. The defendant objected to the testimony of the witness Amos, and moved to exclude the same, which motion the court overruled, and the defendant excepted. The evidence for the defendant tended to show that his character for peace and quiet was good; and defendant offered to prove by the witness Price that when he first saw the defendant he was following the buggy after Snow was shot "in a gait in which a man would ordinarily follow a runaway team." Solicitor for the state objected to this testimony, the court sustained the objection, and the defendant excepted. The other facts of the case necessary to an understanding of the decision are stated in the opinion.

Upon the conclusion of the evidence the defendant requested the court to give the following written charges to the jury, which the court refused to give, and the defendant excepted: "(1) The court charges the jury that, in considering the evidence of statements made by the defendant, they will do it in the light of the facts that it is the repetition of oral statements, that such testimony is subject to much infirmity and mistake, that men often fail to express clearly what they mean, that the witness often fails to understand correctly what the party actually did say, and that the witness often unintentionally alters some of the expressions of the party. (2) The court charges the jury that evidence of verbal admissions by a person charged with a crime is to be received and weighed by the jury with great caution. This evidence, consisting of repetition of oral statements, is subject to much imperfection and mistake. The party himself may have been misinformed, or may not have clearly expressed his own meaning, or the witness may have misunderstood him. It frequently also happens that the witness, by unintentionally altering a few expressions really used, gives an effect to the statement completely at variance with what the party did actually say. (3) The court charges the jury that, if the defendant had proved a good character as a man of peace, the law says that such good character may be sufficient to create a reasonable doubt of his guilt, although no such doubt would have existed but for such character. (4) The court charges the jury that, if the state has failed to prove a motive on the part of the defendant to kill Snow reasonably calculated to prompt him to take Snow's life, then this is a circumstance in the defendant's favor, to be considered in the light of all the evidence in the case. (5) The court charges the jury that evidence of a motive on the part of a defendant to take the life of the deceased while admissible for the consideration of the jury, yet it is testimony of a weak and inconclusive character. The jury should be guarded as to the importance they attach to such evidence. (6) The court charges the jury that under the laws of this country the defendant had the right to carry arms, and, if the evidence fails to show that he was carrying it on the day Snow was killed for an offensive purpose, then he did no wrong in carrying the gun. (7) A reasonable doubt is such as arises not only from evidence offered to the jury which tends to prove the defendant's innocence, but may also arise from the absence of sufficiently strong and convincing evidence before the jury tending to prove his guilt. (8) The absence of sufficiently satisfying evidence before the jury may offer ground for reasonable doubt of the defendant's guilt. (9) The court charges the jury that the law finds as full and complete vindication in the acquittal of a defendant, not proved beyond a reasonable doubt to be guilty as it does in the conviction of one shown to be guilty beyond a reasonable doubt. (10) The court charges the jury that their duty is as fully discharged when they acquit a man whose guilt is not proven beyond a reasonable doubt as it is when they convict a man whose guilt is proven by that measure of proof."

Street & Isbell, for appellant.

Massey Wilson, Atty. Gen., for the State.

ANDERSON J.

The defendant moved to quash the indictment because the record did not show an organization of the grand jury. Court had been in session several days, and the clerk had ample time to have written up the organization of the grand jury, and the judge ought to have required him to do so. Paragraph 8 of Section 934 of the Code of 1896 says it is the duty of the clerk "to keep a book, in which must be entered the minutes of each day's proceedings during the term of the court, and the orders and judgments, in the order in which they are made or rendered." Section 2641 says: "The minutes of the court must be read each morning in open court and, on the adjournment of the court, must be signed by the judge." The law certainly contemplates that the clerk shall write up the proceedings of each day and read the minutes the next morning in open court, in order that the judge can determine the correctness of the entries. This action is directed by law, and a compliance therewith tends to keep down disorder and confusion, and prevents a congestion when the time for adjournment arrives. It is no hardship on the clerk, as the minutes must be written up in the end, and it is just as well to record the proceedings daily as the law directs. There are clerks who write the minutes of each day and read the same in open court the next morning, and it is the writer's experience that it is a safeguard against errors and...