Davis v. State

Decision Date01 June 1944
Docket Number4 Div. 324.
Citation245 Ala. 589,18 So.2d 282
PartiesDAVIS v. STATE.
CourtAlabama Supreme Court

Archie I. Grubb, of Eufaula, for appellant.

Wm N. McQueen, Acting Atty. Gen., and John O. Harris, Asst Atty. Gen., for the State.

GARDNER Chief Justice.

The appeal is from a judgment of conviction for murder in the first degree, with infliction of the death penalty. The defendant is a Negro sawmill hand, and the deceased, Lee Beverly, a white man, on whose farm in the country defendant lived with his family as tenant in one of the houses on the place. The killing occurred late in the evening (about 6 p m.) of September 20, 1941, when defendant cut deceased with a pocketknife under the left arm pit. There was no extensive bleeding, but the knife entered the chest cavity and produced death. It was not a stab wound, but a deep cut, or a combination of the two, so the attending physician states.

Undisputedly there had been no controversy of any character between defendant and Beverly, the deceased. Their relations were entirely harmonious, so far as here appears. But there were some words between defendant and one Bab, another white man, there at the farm near a pecan tree, growing out of the charge by Bab that defendant's four-year-old child had made some remark to Bab's child which was considered objectionable. The only eyewitness to the killing examined by the State was Mrs. Beverly, the widow.

Defendant left the scene, and was afterwards apprehended in Ohio, brought back to Alabama, and arraigned on July 27, 1943, with his trial beginning August 4, 1943. Upon the order of the trial judge, based on an affidavit of the sheriff of the county, defendant was incarcerated in the Montgomery County jail until his trial, the sheriff appearing to have some apprehension concerning his safety if carried into Bullock County at that time. He was defended by counsel appointed by the court, and this appeal appears to be governed by the provisions of the act of June 24, 1943, which provides for an automatic appeal for a convicted felon sentenced to death, pursuant to the laws of this State. General Acts 1943, p. 217.

Subsequent to his conviction defendant, or some one for him, employed counsel who interposed a motion for a new trial based upon numerous grounds, among them, that the verdict was contrary to the great preponderance of the evidence, and for newly discovered evidence. This newly discovered evidence was the testimony of Bab, the white man with whom defendant had the quarrel on the occasion of this difficulty, and who was slightly wounded by defendant with the same pocketknife which he used on Beverly. Bab was summoned as a witness for the State upon the original trial, was present at the trial, talked with the solicitor, but was not examined. The testimony of the appointed counsel is to the effect that he was informed by others, though he did not interview Bab, that Bab's testimony would be no more favorable for his client than was that of Mrs. Beverly. It developed, however, upon the hearing had on the motion for a new trial, at which Bab orally testified, that his evidence would in several material respects be much more favorable to the defendant than that of Mrs. Beverly.

Of course, the authorities are uniformly to the effect that it is not essential that newly discovered proof would likely have produced an acquittal. It suffices if it would, in all probability, raise a reasonable doubt as to the guilt of the defendant within the degree of culpability of which the jury finds him guilty. 39 Am. Jur. p. 173. A study of Bab's testimony discloses that it was material, competent, not merely impeaching or cumulative, and in this respect meets the requirements of the established rule concerning motions for new trial based upon newly discovered evidence....

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11 cases
  • Jacobs v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 26, 1977
    ...and where the verdict was contrary to the great preponderance of the evidence. Easley v. State, 246 Ala. 359, 20 So.2d 519; Davis v. State, 245 Ala. 589, 18 So.2d 282. In State v. Dixon, 283 So.2d 1, the Supreme Court of Florida "The aggravating circumstance which has been most frequently a......
  • Scott v. State
    • United States
    • Alabama Supreme Court
    • April 17, 1947
    ... ... This, under the rule of implied ... admissions. Clark v. State, 240 Ala. 65, 197 So. 23; ... Bachelor v. State, 216 Ala. 356, 113 So. 67; ... Jackson v. State, 213 Ala. 143, 104 So. 220; ... Jackson v. State, 167 Ala. 44, 52 So. 835; ... Raymond v. State, 154 Ala. 1, 45 So. 895; Davis ... v. State, 131 Ala. 10, 31 So ... [30 So.2d 691] ... 569; ... Abercrombie v. Allen, 29 Ala. 281; Sparf v ... United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343; ... 80 A.L.R. 1235 et seq.; 115 A.L.R. 1510 et seq ... To be ... admissible the circumstances under ... ...
  • Wadsworth v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 14, 1987
    ...that the new evidence would change the result." Maund v. State, 254 Ala. 452, 462, 48 So.2d 553 (1950). See also Davis v. State, 245 Ala. 589, 590, 18 So.2d 282 (1944) ("Of course, the authorities are uniformly to the effect that it is not essential that newly discovered proof would likely ......
  • State v. Strahl
    • United States
    • South Dakota Supreme Court
    • July 1, 2009
    ...found by the jury. See, e.g., Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, 537 (Ala.Cr. Ct.App. 1975) (quoting Davis v. State, 245 Ala. 589, 18 So.2d 282, 283 (1944)). [¶ 17.] As we wrote in Gehm, new trial motions founded on newly discovered evidence "should be granted only in exceptional......
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