Dennis v. State

• Decision Date: 12 November 1896
• Citation: 112 Ala. 64,20 So. 925
• Parties: DENNIS v. STATE.
• Court: Alabama Supreme Court

20 So. 925

112 Ala. 64

DENNIS v. STATE.

Supreme Court of Alabama

November 12, 1896

Appeal from circuit court, Jackson county; James A. Belbro, Judge.

Joel T Dennis was convicted of murder in the second degree, and appeals. Reversed.

The eighth charge asked by defendant, referred to in the opinion of the court, was as follows: "The humane provision of the law is that a conviction should not be had on circumstantial evidence, unless it excludes, to a moral certainty, every reasonable hypothesis but that of the defendant's guilt. If the facts can be reasonably reconciled with any theory of the case consistent with the defendant's innocence, then the proof does not make out a cause as the law requires. No matter how strong the circumstances, if they can be explained reasonably and consistently with the defendant's innocence, then the law demands an acquittal at your hands."

Virgil Bouldin, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

COLEMAN J.

The defendant was indicted for murder in the first degree, and tried, and convicted of murder in the second degree. The questions presented for review, which are insisted upon in the brief of counsel for appellant, are the refusal of the court, though requested thereto, to instruct the jury upon the law of manslaughter, and the refusal to give charge No. 8 requested by the defendant. The court is the judge of the law of the case, and in the exercise of this power determines the legality and admissibility of the evidence offered. An indictment for murder in the statutory form includes manslaughter in the first and second degrees. The plea of not guilty puts in issue these several degrees of the charge of homicide included in the indictment. The court determines whether the evidence offered legally tends to support either offense, and whether that offered by the defendant legally tends to disprove the charge, or is in rebuttal. It is not reversible error for the court to refuse an abstract charge nor will the giving of an abstract charge which asserts a correct legal proposition operate a reversal, unless it appears that on account of the circumstances of the case, and the character of the charge given, it was calculated to prejudice the party excepting. It is upon these principles that we have held that the court was not bound to charge the jury upon the constituents of manslaughter when there was no evidence or fact in the case which would authorize the inference that the offense was of that degree. The court being the judge of the law, necessarily adjudicates whether there is such evidence. The evidence being admitted, the statute expressly prohibits the court from charging upon its effect, unless requested. Code 1886, § 2754. This statute provides that the court "may also state the evidence when the same is disputed." It should be borne in mind that this provision was not intended to abridge the original inherent power of the court to direct the attention of the jury to undisputed, admitted facts. The statute simply enlarges the power of the court in this respect. Tidwell v. State, 70 Ala. 33, 44. Manslaughter in the first degree is punishable by imprisonment in the penitentiary for not less than 1 nor more than 10 years; murder in the second degree for not less than 10 years. Malice is the distinguishing element between murder and manslaughter. Malice may exist, and yet the circumstances of the killing may be such as to call for no severer punishment than in a case of aggravated manslaughter. There may be a homicide without malice, and yet of such aggravated form as to justify the imposition of the same degree of punishment as where malice exists. There are facts from which the law presumes malice. This presumption may be rebutted or overcome by the facts which prove the killing, or by other evidence. Manslaughter in the first degree is the voluntarily depriving a human being of life (Cr. Code, § 3731), and, as defined and construed, without malice. In the case of Hornsby v. State, 94 Ala. 55, 66. 10 So. 522, 526, we held that whether the...