Chastain v. State, 7 Div. 113

• Decision Date: 02 August 1951
• Docket Number: 7 Div. 113
• Citation: 36 Ala.App. 186,54 So.2d 623
• Parties: CHASTAIN v. STATE.
• Court: Alabama Court of Appeals

Page 623

54 So.2d 623

36 Ala.App. 186

CHASTAIN v. STATE.

7 Div. 113.

Court of Appeals of Alabama.

Aug. 2, 1951.

Rehearing Denied Aug. 21, 1951.

E. G. Pilcher, Martin & Hinton and H. C. Orme, Jr., all of Gadsden, for appellant.

Si Garrett, Atty. Gen., and Thos. F. Parker, Asst. Atty. Gen., for the State.

Conforming to opinion of the Supreme Court in response to certified question, 54 So.2d 628, which is as follows: To the Honorable, The Court of Appeals of Alabama

Judicial Building

Montgomery, Alabama

Dear Sirs:

The Court of Appeals under the provisions of § 88, Title 13, Code of 1940 has certified for our answer the following:

'The Judges of this court are in disagreement and 'unable to reach an unanimous conclusion' as to certain controlling questions in the case of Chastain v. State, from Etowah Circuit Court, now pending in this court.

'Our court has under consideration in this case the following written charge:

"18. I charge you gentlemen of the jury that the absence of sufficiently satisfying evidence before the jury may offer grounds for a reasonable doubt of the defendant's guilt, in which event you would acquit the defendant.'

'The Supreme Court in Carwile v. State, 148 Ala. 576, 39 So. 220, held that charge 8 was good and should have been given. Charge 8 was as follows:

"The absence of sufficient satisfying evidence before the jury may offer ground for reasonable doubt of the defendant's guilt.'

'In Griffin v. State, 150 Ala. 49, 43 So. 197, 199, the Supreme Court by McClellan, Jr., observed:

"Refused charge numbered 22 is as follows: 'The absence of sufficiently satisfying evidence before the jury may offer ground for reasonable doubt of defendant's guilt.' This charge was well refused, since it substitutes the word 'offer' for the word 'afford.' The writer is of the opinion that, if correctly worded, the charge should have been refused, because, among other reasons, it is indefinite and uncertain, in that it does not hypothesize of what the jury must be 'sufficiently satisfied,' and, besides, assumes the absence of evidence.'

'In the case of Gaston v. State, 161 Ala. 37, 49 So. 876, 878, the charge under consideration was:

"(21) I charge you that the absence of sufficiently satisfying evidence may be a ground for reasonable doubt of defendant's guilt.' (Italics ours.)

'McClellan, Jr., again speaking for the court, held:

"Charge 21 has been approved as charge 8 in Carwile's Case, 148 Ala. , 585, 39 So. 220.'

'In attempting to reconcile these authorities, the Judges of our court have disagreed and therefore, as authorized by law, the following abstract question is hereby certified to your court for an opinion as guidance to our court in said cause, towit:

'1. Does the charge under consideration state a correct proposition of law?'

Charge 18 does not state a correct proposition of law. We agree with the writer of the opinion in Griffin v. State, 150 Ala. 49, 43 So. 197, when he said: 'it is indefinite and uncertain, in that it does not hypothesize of what the jury must be 'sufficiently satisfied,' and, besides, assumes the absence of evidence.'

LIVINGSTON, C. J., and BROWN and FOSTER, JJ., concur.

LAWSON and SIMPSON, JJ., dissent.

LAWSON, Justice (dissenting).

The charge about which you inquire, Charge 18 in the case of Chastain v. State, from Etowah Circuit Court, now pending in your court, is in all material respects the same as Charge 8 which this court held was good and should have been given in Carwile v. State, 148 Ala. 576, 39 So. 220.

Charge 22 which this court held refused without error in Griffin v. State, 150 Ala. 49, 43 So. 197, was in the exact language of the charge considered in Carwile v. State, supra. No reference is made in the opinion in Griffin v. State to the holding in Carwile v. State, supra. As we construe the opinion in the Griffin case, the action of the court was based on the fact that Charge 22 in that case used the word 'offer' rather than the word 'afford.' Yet the word 'offer' was used in the charge held good in Carwile v. State, supra. I do not understand that the court concurred in the views of the writer of the opinion, Justice McClellan, that even if Charge 22 had been correctly worded it should have been refused because it is indefinite and uncertain in that it does not hypothesize of what the jury must be 'sufficiently satisfied' and also assumes the absence of evidence.

Justice McClellan, who wrote the opinion for the court in the Griffin case, in Gaston v. State, 161 Ala. 37, 49 So. 876, evidently had his attention called to the case of Carwile v. State, supra, and upon the holding in that case held that Charge 21 in the Gaston case had been approved in the Carwile case. The only distinction between the charge in the Carwile case and that under consideration in the Gaston case is that the word 'be' was substituted for the word 'offer.'

In so far as I have been able to determine, the holdings in the Carwile and Gaston cases above referred to have not been expressly overruled, and Gaston's case being the last expression of the court, I am of the opinion that Charge 18 should be held to be a good charge. However, I think the charge is nothing more than a reasonable doubt charge and its refusal should not constitute reversible error where the trial court's oral charge sufficiently covers the law of reasonable doubt.

SIMPSON, J., concurs in this dissent.

These charges were refused to defendant:

'2. I charge you gentlemen of the jury that if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendant's guilt, this is sufficient to raise a reasonable doubt and you should acquit the defendant.

'9. The court charges the jury that the only foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence, beyond a reasonable doubt and to a moral certainty, that the defendant is guilty as charged in the indictment, to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt, and, if the prosecution has failed to furnish such measure of proof, and to so impress the minds of the jury of his guilt, you should find him not guilty.

'11. The court charges the jury that if, upon a consideration of all the evidence, the minds of the jury or any member of the jury is left in a state of reasonable doubt and uncertainty, by the evidence or any part of the evidence, of defendant's guilt, then you cannot convict the defendant.

'14. I charge you gentlemen of the jury that you must find the defendant not guilty, if the conduct of the defendant upon a reasonable hypothesis is consistent with his innocence.

'16. I charge you gentlemen of the jury that if the evidence for the state consists of testimony as to the truth of which the jury has a reasonable doubt, you must not convict the defendant, although you may not believe the testimony of the defendant's witnesses.

'18. I charge you gentlemen of the jury that the absence of sufficiently satisfying evidence before the jury may offer grounds for a reasonable doubt of the defendant's guilt, in which event you would acquit the defendant.

'32. I charge you gentlemen of jury that if the conviction depends upon the testimony of a single witness, the truth of which you have a reasonable doubt, you cannot convict the defendant and your verdict should be one of not guilty.'

PRICE, Judge.

On an indictment charging murder in the first degree, the defendant was convicted of murder in the second degree and his punishment fixed at 10 years imprisonment in the penitentiary. From the judgment of conviction and the action of the court in overruling the motion for a new trial this appeal is prosecuted.

We see no necessity for detailing the testimony. The evidence is without dispute that appellant killed Rowan Cowan, his daughter's sweetheart, by shooting him with a rifle. The killing occurred at defendant's home. The principal witnesses for the State were defendant's wife and children. Their testimony tended to prove the defendant guilty of murder. Appellant's testimony and that of his witnesses tended to show that he shot in self defense.

The killing being admitted, the question of whether the defendant was justified in so doing was, under the conflicting testimony, for the determination of the jury.

State's witness, Sue Chastain, in response to a question by defendant's counsel, stated she was the owner of the premises occupied by defendant as his home. Later, as a witness in his own behalf, defendant testified, both on direct and cross fendant testified, both on direct and cross property. Whereupon, the State, over defendant's objection, introduced evidence by defendant's wife showing title in Sue Chastain. The defendant, having first brought out the testimony complained of, cannot predicate error upon the ruling of the court in admitting immaterial evidence in rebuttal of immaterial evidence introduced by him. Morgan v. State, 88 Ala. 223, 6 So. 761; Winslow v. State, 92 Ala. 78, 9 So. 728; Royal Insurance Company v. Robertson, 242 Ala. 460, 6 So.2d 880; Bradford v. Birmingham Electric Company, 227 Ala. 285, 149 So. 729; Windham v. Hydrick, 197 Ala. 125, 72 So. 403.

Defendant's witness, Frank Ledbetter, having testified that he knew defendant's reputation for peace and quietude and that it was good, the court properly allowed the State to ask witness on cross examination, this question: '(Q) Did you hear that in 1948 his wife took out a warrant for him, for assault and battery?' The witness answered 'No.'

The question was competent for the...