Davis v. State

• Decision Date: 27 June 1913
• Citation: 62 So. 1027,8 Ala.App. 147
• Parties: DAVIS et al. v. STATE.
• Court: Alabama Court of Appeals

62 So. 1027

8 Ala.App. 147

DAVIS et al. v. STATE.

Court of Appeals of Alabama

June 27, 1913

Rehearing Denied July 8, 1913

Appeal from City Court of Selma; Armstead Brown, Judge.

Yancey Davis and another were convicted of manslaughter in the first degree, and they appeal. Affirmed.

The original verdict returned found defendants guilty of manslaughter without finding the degree, and on being recalled the jury stated to the court what the jury found and this was inserted.

The following charges were refused to defendant:

"(2) 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 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, they should find defendant not guilty."

"(4) The court charges the jury that, if the evidence is not so convincing as to lead the minds of the jury to the conclusion beyond all reasonable doubt that defendant is guilty as charged in the indictment, they must find defendant not guilty."

"(17) The court charges the jury that the burden is upon the state, and it is the duty of the state to show beyond all reasonable doubt, and to the exclusion of every other reasonable hypothesis, every circumstance necessary to show that defendant is guilty; and, unless the state has done this in this case, it is your duty to render a verdict of not guilty."

"(19) The court charges the jury that, before you can convict the defendant, all the necessary and material allegations of the indictment should be proved beyond a reasonable doubt."

"(23) The court charges the jury that, if the evidence in the case is reasonably consistent with the defendant's innocence, you should promptly acquit defendant."

"(28) The court charges the jury that the innocence of defendant is presumed until his guilt is established by the evidence in all the material aspects of the case beyond a reasonable doubt, to a moral certainty, and it may also be said that evidence of guilt must be strong and cogent, and, unless it is so strong and cogent as to show that defendant is guilty to a moral certainty, defendant should be acquitted."

"(36) The court charges the jury that if the evidence in this case is not so convincing as to lead the minds of the jury to the conclusion beyond all reasonable doubt that defendant is guilty, or if the evidence, or any part thereof, generates a well-founded doubt of defendant's guilt in the minds of the jury, or if there is a reasonable doubt of defendant's guilt arising out of any part of the evidence (reasonable doubt not being the same as probability of innocence) but existing where the evidence fails to convince the jury that there is a probability of innocence, then you should acquit defendant.

"(37) The jury should be satisfied beyond all reasonable doubt to the exclusion of every probability of innocence, and beyond every doubt of guilt, before they can convict the defendant."

"(41) If, after weighing and considering all the evidence in the case, any one or more of the jurors feels that he desires more evidence before he or they can have an abiding conviction of the guilt of defendant, then such a juror has a reasonable doubt of defendant's guilt, and the jury should not convict the defendant."

"(64) The burden is upon accused to show self-defense; yet, if upon all the evidence the jury have a reasonable doubt as to whether he acted in self-defense or not, he is entitled to the benefit of the doubt and to an acquittal.

"(65) The court charges the jury that the burden of proof is not on the accused but on the state to prove that accused was the aggressor or provoked the difficulty."

W.W. Quarles and Reese & Reese, all of Selma, and Hill, Hill, Whiting & Stern, of Montgomery, for appellants.

R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen. (Craig & Craig, of Selma, of counsel), for the State.

THOMAS J.

In this case we reverse the order usually followed in the consideration of the points raised by the record and will here first deal with the last exception presented, since it raises a question of such a character that, should we reach a conclusion upon it in harmony with the contention of the defendants' counsel, it will eliminate the necessity for the consideration of the other questions raised in that it will not only cause a reversal here of the judgment of conviction but be decisive of the future disposition of the case in the court below on another trial.

The defendants (father and son) were jointly indicted for murder and were jointly tried; the jury returning a verdict which, after being corrected by them in an immaterial particular under the direction of the court, read as follows: "We, the jury, find the defendants guilty of manslaughter in the first degree and fix as their punishment five years in the penitentiary." Formal judgment of conviction followed this verdict, and the court separately sentenced each of the defendants to five years in the penitentiary. It is contended by appellants' counsel that this sentence was unauthorized because, as they claim, the verdict as to the punishment inflicted upon the defendants is joint and not several, and does not mean, as it was construed by the lower court, that each defendant is to serve a sentence of five years, but means that the two together are to serve five years, each such a portion thereof as to make up the total; and that this verdict, being joint and not several, is void for indefiniteness and uncertainty and could not form the basis of any valid sentence whatever in that it does not prescribe what portion of this five years each is to serve, whether each is to serve an equal portion of it, or whether one was to serve more of it than the other, and, if so, what the division between them of this punishment was to be.

The first authority cited on the proposition in the brief of appellants' counsel is that of Arnold v. Commonwealth (Ky.) 55 S.W. 894, which, however, instead of supporting their contention, it seems to us, destroys it. In that case the verdict was as follows: "We of the jury find the defendants [naming them] guilty of voluntary manslaughter, and fix their punishment at confinement in the penitentiary for the period of twenty-one years." In dealing with the objection to this verdict, the Kentucky court said: "It is objected that this verdict and judgment are void. *** There is considerable authority to support this view, notably in the Texas cases, which seem to be exactly in point. The case of Bosleys v. Commonwealth, 7 J.J. Marsh. (Ky.) 599, was a joint fine against the defendants, and the reason given for holding the judgment erroneous was stated to be 'because thereby one of the defendants may be compelled to pay the whole amount, and in that event he would not be entitled to contribution from his co-defendants. Thus the other defendants would escape punishment entirely, and the whole burden might fall upon him who was least blamable in the transaction. So far it would savor of punishing one man for the guilt of another.' It is obvious that this reasoning does not apply to the case at bar. Here there can be no doubt as to the meaning of the jury's verdict, for it requires" the defendants "to be confined for 21 years (i.e., during that full period they are both to be kept in confinement), which is the same as saying that each is to be confined 21 years." The other Kentucky case cited in appellants' brief is that of Curd v. Commonwealth, 14 B.Mon. (Ky.) 386, where, as the only punishment inflicted upon defendants, who were jointly indicted and convicted, the jury assessed a separate fine against each. Upon the contention of their counsel that the fine should have been assessed against them jointly, the Kentucky court held otherwise.

In the case of State v. Gay, 10 Mo. 440, cited by appellant, the form of the verdict rendered is not given in the report of the case, but it appears that the punishment inflicted was only a fine, and the court held that there should have been a separate assessment against each defendant.

The only other cases, outside of this state, to which we are cited by appellants' counsel are from the state of Texas to wit: Allen v. State, 34 Tex. 230, Cunningham v. State, 26 Tex.App. 83, 9 S.W. 62, and Hines v. State, 48 Tex.Cr.R. 24, 85 S.W. 1057, in each of which the punishment was only a fine; and Hays v. State, 30 Tex.App. 472, 17 S.W. 1063, and Caesar v. State, 30 Tex.App. 274, 17 S.W. 258, where the form of the verdict was identical in substance to that here and where the punishment was by sentence to the penitentiary. These cases, however, on the point here urged, have ceased to be authority in the jurisdiction from which they emanated and therefore are certainly entitled to no weight elsewhere as precedents; for the Court of Criminal Appeals of Texas in a case later than the last two just named as cited by appellants' counsel, that of Garza v. State, 43 Tex.Cr.R. 499, 66 S.W. 1098, where the verdict, as here, found the defendants guilty and assessed "their punishment" at three years' confinement in the penitentiary, said: "Exceptions were reserved to this" verdict "on the theory that it was a joint verdict, and not a separate verdict, as to each. Some of the older cases so hold, but this has not been the rule since the case of Mootry v. State, 35 Tex.Cr.R. 457 [33 S.W. 877, 34 S.W. 126]." In that case the verdict of the jury read, "We, the jury, find the defendants guilty of murder in the first...