Davis v. State
| Citation | 209 Ala. 409,96 So. 187 |
| Decision Date | 05 April 1923 |
| Docket Number | 6 Div. 731. |
| Parties | DAVIS v. STATE. |
| Court | Supreme Court of Alabama |
Rehearing Denied May 10, 1923.
Appeal from Circuit Court, Jefferson County; Wm. E. Fort, Judge.
Will Davis was convicted of murder in the second degree, and appeals. Affirmed.
B. E Samuels and William Vaughan, both of Birmingham, for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Defendant appellant, was convicted of murder in the second degree.
Defendant has submitted evidence in support of his motion to establish a bill of exceptions different in some respects from that signed by the presiding judge and which appears in the transcript certified by the clerk of the trial court. Affidavits contra have also been submitted. After due consideration it will suffice to say that the weight of the evidence does not sustain in all respects the bill defendant seeks to establish, and hence that the motion must be overruled. The case therefore is to be considered upon the bill of exceptions appearing in the record and certified by the presiding judge.
Pending argument by attorneys, the the jury were allowed to separate over night. This was done after consultation with the solicitor and defendant's counsel then of record, both consenting. The jury were strictly cautioned by the court with respect to their conduct during the separation, and with one accord the twelve deposed on defendant's motion for a new trial that they had had no communication whatever with any person concerning the case nor had seen any statement in the newspapers touching the case. By entering into this agreement the prosecution assumed the burden of proving that no abuse resulted from the separation of the jury; but in this case that burden has been well sustained and error cannot be affirmed of the court's action in that behalf. Butler v. State, 72 Ala. 179.
On the subject of the solicitor's remarks to the jury, to which defendant reserved an exception, we have felt constrained to accept the version shown by the bill of exceptions contained in the authentic record. It there appears that defendant objected to so much of the solicitor's argument as stated, in effect, that no doubt defendant's brutal instincts, as shown by his savage deed in taking the life of deceased, had come down to him from his ancestors in the jungles of Africa. This was not to array race against race, as was the case in Moulton v. State, 199 Ala. 411, 74 So. 454, much emphasized in the brief for appellant. Conceding, however, that the prosecuting officer laid too great stress on defendant's ancestry as indicating the need of punishment and restraint, we find that the court appropriately cautioned the jury in respect thereof, and that no exception was reserved and no reversible error shown.
Charge 2, refused to defendant, has been condemned by this court as a mere argument. Rogers v. State, 117 Ala. 15, 22 So. 666. Defendant's contention was that deceased, his wife, had attempted to take from his hands a weapon he had carried to the scene and that, in the struggle or scuffle that ensued, the weapon was accidently discharged. The trial court, in its oral...
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