Davis v. State

• Decision Date: 16 January 1923
• Docket Number: 3 Div. 436.
• Citation: 19 Ala.App. 94,96 So. 369
• Parties: DAVIS v. STATE.
• Court: Alabama Court of Appeals

96 So. 369

19 Ala.App. 94

DAVIS v. STATE.

3 Div. 436.

Court of Appeals of Alabama

January 16, 1923

Appeal from Circuit Court, Butler County; Arthur E. Gamble, Judge.

Frank Davis was convicted of murder in the second degree and he appeals. Affirmed.

Powell & Hamilton and C. E. Hamilton, Jr., all of Greenville, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

From a judgment of conviction of murder in the second degree, and sentence to 20 years' imprisonment in the penitentiary defendant appeals.

In a well-considered brief counsel for appellant present the sole question relied upon to effect a reversal of the judgment of conviction pronounced against defendant in the court below.

The question relates to the refusal of the court to give at the request of defendant special written charge 1. The charge is as follows:

"In passing on the evidence in this case, if the jury finds that the evidence is in conflict, it is the duty of the jury to reconcile the conflict, if it reasonably can favorable to defendant."

In support of this charge counsel for appellant relies mainly upon the case of Johnson v. State, 102 Ala. 1, 18 16 So. 99. Other cases are also cited.

We do not think the refusal of this charge was error. It is true that the course of conduct for the jury as indicated in the charge might and very properly should be followed by a jury in their deliberations under the stated conditions; for, as aptly stated in the Johnson Case, supra, it would seem that justice and humanity alike demand that the jury, where there are two conclusions which may be drawn from the evidence, one of which is favorable to the defendant, and one unfavorable, should adopt the former, or the favorable conclusion. But is it within the province of the court to instruct the jury as a matter of law as to what course of conduct they must pursue in the premises? We think not. We consider the giving of such instructions by the court would be a usurpation, upon the part of the court, of the power vested by law solely in the jury itself, and therefore invasive in a marked degree of the province of the jury. In this conclusion we are sustained by numerous decisions of the Supreme Court and of this court. In Smith v. State, 88 Ala. 23, 7 So. 103, the court held that a similar charge did not state a correct proposition of law, and said:

The charge "is not based upon the relative reasonableness of the two constructions. The testimony in support of the construction favorable to the accused may be weak, and yet not so weak as to render the construction unreasonable. It may be stronger in support of the construction unfavorable to the accused. Besides, the jurors are the sole judges of what construction shall be placed upon the testimony, and of

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