Cleveland v. State

• Decision Date: 24 January 1889
• Citation: 86 Ala. 1,5 So. 426
• Parties: CLEVELAND v. STATE.
• Court: Alabama Supreme Court

5 So. 426

86 Ala. 1

CLEVELAND v. STATE.

Supreme Court of Alabama

January 24, 1889

Appeal from city court of Mobile; O. J. SEMMES. Judge.

Ulysses Cleveland was indicted for the murder of Arthur Glennon, by shooting him with a pistol, and was convicted of murder in the second degree. Defendant requested the following charges which were refused:

"(1) Even if the jury believe from the evidence that the defendant killed Arthur Glennon, but further believe that at the time of the fatal shot he had reasonable cause to believe that it was Tom Popham, who was approaching him and did so believe, and that Popham was about to take his life, or to do some serious bodily harm; and if the evidence fails to show that the defendant was wrong in bringing on the difficulty, or that the appearance was that he could have retreated without increasing his own apparent danger,-then the jury ought to find the defendant not guilty.

"(2) It is the duty of the jury to determine, first, whether or not the defendant killed Arthur Glennon. If the evidence fails to exclude beyond a reasonable doubt every other hypothesis than that the defendant killed the deceased, then they ought to acquit him. If, however, the jury find from the evidence, beyond a reasonable doubt, that the defendant killed the deceased, but that he did so in what he thought was his own defense, and under circumstances that reasonably induced him to believe that he was about to be attacked in a manner calculated to take his life, or to do him some grievous bodily harm, and fails to show that the defendant was in the wrong in bringing on the difficulty, or that he could have retreated without increasing his apparent danger, they ought still to find the defendant not guilty.

"(3) Before the jury can find the defendant guilty, they must be satisfied of his guilt beyond a reasonable doubt. A reasonable doubt exists in that state of the case in which, after consideration of all the evidence, the minds of the jurors are left in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. It is not sufficient to establish a probability, though a strong one, that the fact charged is more likely to be true than the contrary, but the evidence must establish its truth as a moral certainty,-a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. Such conviction to a moral certainty is the state of belief which, considered by itself, without reference to the thing believed in, and as a feeling, is a feeling of satisfaction,-an easy and pleasant feeling. When we are convinced to a moral certainty, we are satisfied, and wish for no further proof. When we doubt, we are dissatisfied, and want more information. If a juror feels any uneasiness whatever as to the truth of the fact in saying guilty, and feels any desire for further evidence, he has a reasonable doubt under the law, and must find for acquittal.

"(4) If the jury believe from the evidence that the defendant, at the time he fired the pistol, was so drunk that he was incapable of entertaining malice, they cannot find him guilty as charged in the indictment.

"(5) It is the duty of the jury to reconcile all of the evidence, if they can, with the theory that the witnesses have spoken truly in every respect; but, if they find that there is a conflict in any portion of the evidence, and if, on consideration of the whole evidence, they entertain a reasonable doubt as to the truth of that evidence, they should give the defendant the benefit of that doubt. If the evidence, about the truth of which they entertain a reasonable doubt, is favorable to the defendant, they should give him the benefit of that doubt, and treat that portion of the evidence true; while, if such portion of the evidence is adverse to the defendant, they will still give him the benefit of that doubt, and discard such evidence from their consideration."

Defendant appeals.

G. L. & H. T. Smith, for appellant.

T. N. McClellan, Atty. Gen., for the State.

STONE C.J.

In the organization and impaneling of the jury in this case, no objections were made, nor exceptions reserved, in the court below. It is objected before us that, when the defendant was put on trial, the venire from which the jury was to be chosen was not the venire the law contemplates and requires in such cases. On Friday, June 22d, the case was set for trial on Monday, July 2d, and an order was made for 100 jurors, including the regular panel, to be summoned to appear before the court on that day, "and that a list of said jurors, and a copy of the indictment, be served on the defendant one entire day before the trial." The court thereupon proceeded to draw from the jury-box of the city court, in conformity to the statute, "sixty-four names for the special venire, in the case of the State of Alabama against Ulysses Cleveland, who is under an indictment charging him with the crime of murder." No objection is pointed out to this part of the proceeding. When the day for the trial (July 2d) arrived, the state not being ready, the hearing of the cause was postponed two weeks, and reset for trial on Monday, July 16th. The court thereupon ordered of record "that the special venire drawn for this case appear on that day." The italics are our own. When the day, second appointed, arrived, no objection was raised to the venire, and the court proceeded to impanel a jury, and to try the cause. It is objected here that the venire put on the defendant, from which to select a jury, was composed of the special venire of 64 names drawn for the occasion, supplemented with the regular panel for the week first appointed, (commencing July 2d), whereas it is contended that the regular panel should have been that one which was serving during the week of the trial. We hold it unnecessary to consider this question, for two reasons: First, no objection was raised in the court below; second, it does not appear that the regular panel of the week commencing July 2d was a part of the venire put on the defendant. The order for the "special venire" to appear on the day second appointed is persuasive to show the contrary. We cannot presume error, and parties complaining of the court's rulings must not leave us in doubt or uncertainty as to what that ruling was. It is shown in the judgment entry that a copy of the indictment and of the venire was served on the defendant one entire day before the trial. We must presume this was the venire from which the selection was made.

Defendant was convicted of the murder of Arthur Glennon, the finding being that he was guilty of murder in the second degree. As between the defendant and Glennon, there is no attempt to show either excuse or extenuation. Deceased does not appear to have given any offense, and the only testimony on the subject of their social relations tends to show they were friendly. The defense relied on was that the defendant thought he was shooting one Popham; that, so believing, he was acting in self-defense; and hence should have been acquitted.

The homicide was committed under an awning, or on a sidewalk, in the city of Mobile, and at night. All the testimony is that the night was dark. The awning extended across two business houses, separated by a hallway, with communication from one to the other by the rear of the hallway. One of the business houses was a barber-shop, with its front folding door half open. There was a light in the shop. The other business house was a drinking saloon, having lights, but the front door was closed. The saloon was west of the barber-shop. The homicide was in front of the barber-shop, but the proof is silent whether the light from the shop shone on the parties. The implication probably is that it did not. There was a vacant lot adjoining the barber-shop on the east, fenced across the front.

At the first inception of the difficulty, or of that which it is contended led to it, four or more persons were under the awning,-all, or most of them, in front of the barber-shop. Defendant was standing leaning against an awning post. Some foolish words of bravado passed between him and one Spencer, not allowed to be specially proved, and there was some proof that defendant then drew a pistol. The proof was by several witnesses that defendant then had a pistol. At this stage the proof was by Popham himself that he told defendant not to do that, and struck him or shoved him, and then ran into the barber shop. It is not shown that defendant moved from his position until after the homicide.

There is, as is generally the case, great uncertainty of proof as to the time elapsing between Popham's retreat or entrance into the barber-shop and the firing of the pistol shot. Most of witnesses, who testified on this subject, were more or less intoxicated. They vary, in their estimate of the time from a few seconds to several minutes. Popham's statement was that it was as much as three or four minutes. He was in the saloon when he heard the report of the pistol, but was on the eve of opening its front door, and going out. He immediately went out. There is equal contrariety of statement as to the direction from which Glennon, the deceased, approached, and appeared on the arena. It is variously testified that he approached on the sidewalk, up the Spring Hill street or road, from the west; that he came from Dauphin street on the east; and one of the witnesses testified that he approached Cleveland, the defendant, from the direction of the barber-shop. This would be from the north. Now, all this testimony was material only on the inquiry...