Diamond v. State

• Decision Date: 30 June 1916
• Docket Number: 4 Div. 413
• Citation: 15 Ala.App. 33,72 So. 558
• Parties: DIAMOND v. STATE,
• Court: Alabama Court of Appeals

72 So. 558

15 Ala.App. 33

DIAMOND v. STATE,

4 Div. 413

Court of Appeals of Alabama

June 30, 1916

Rehearing Denied Aug. 1, 1916

Appeal from Circuit Court, Covington County; H.A. Pearce, Judge.

Revenell Diamond was convicted of manslaughter and he appeals. Reversed and remanded.

The case was one of a fight in which defendant cut to death his cousin, the defendant being a boy of about 16 years, and the deceased a man about 35. The evidence for the state tended to show an unjustifiable homicide, and that for the defendant tended to show self-defense. The following are the charges referred to as being refused to the defendant:

(2) Appears.

"(3) The court charges the jury that before they can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and, unless the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance in his own interest, then they must find the defendant not guilty.

"(4) The court charges the jury that unless the evidence in the case is so strong and cogent as to exclude from the minds of the jury, each and every one, every reasonable supposition but that of guilt of the defendant, they should acquit him."

"(7) The court charges the jury that there is a legal presumption of innocence which is to be regarded as a matter of evidence by the jury to the benefit of which the accused is entitled, and as a matter of evidence it attends the defendant until his guilt is, by the evidence, placed beyond a reasonable doubt."

"(11) The court charges the jury that if they believe from the evidence that the defendant approached the deceased in a quiet and orderly manner, and with the honest purpose and intention to peaceably settle a matter of difference between deceased and defendant, and the deceased struck the defendant a blow or blows in the face, which blows were sufficient to engender sudden heat of passion, which was sufficient for the time being to dethrone the reason of the defendant and make him regardless of his admonition, they cannot find defendant guilty."

(16) Affirmative charge.

(17) Same.

Parks &amp Prestwood, of Andalusia, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty Gen., for the State.

BROWN J.

The only question presented for review arises from the refusal by the trial court of certain written charges requested by the appellant. Immediately following these refused charges as set out in the bill of exceptions occurs the following statement:

"The presiding judge then gave at the request in writing of the defendant the following charges, which were read to the jury. (The clerk will here set out the charges.)

"I have made thorough search for the

charges given at the request of the defendant and have been unable to find them.

"W.H Jones, Clerk."

It is thus affirmatively shown on the record that special written charges, other than those refused, requested by the defendant, were given by the court and read to the jury.

It is well settled that the burden is on the defendant to affirmatively show error (Smith v. State, 183 Ala 10, 62 So. 864); that no duty rests upon a trial court to give duplicates of charges already given, and that it is not error to refuse such duplicate charges (Watkins v. State, 133 Ala. 88, 32 So. 627; Wildman v. State, 139 Ala. 125, 35 So. 995); that every reasonable presumption will be indulged in favor of the correctness of the ruling of the trial court, and the presumption of correctness will prevail unless overturned by affirmative showing on the record to the contrary. Sanders v. Steen, 128 Ala. 633, 29 So. 586; Clardy v. Walker, 132 Ala. 264, 31 So. 78; Sanders v. Edmonds, 98 Ala. 157, 13 So. 505; Webb v. Ballard, 97 Ala. 584, 12 So. 106; Donaldson v. Wilkerson, 170 Ala. 507, 54 So. 234; Harper v. State, 109 Ala. 28, 19 So. 857. In Sanders v. Steen, supra, the Supreme Court, in refusing to review the trial court giving the affirmative charge in favor of the plaintiff in that case, said:

"The bill of exceptions does not purport to set out all the evidence. Where this is the case, under the uniform rulings of this court, the presumption will be indulged that there was evidence before the lower court which authorized the giving of it. Non constant one of the plaintiff's replications was proven."

It is here insisted by the Attorney General, in view of the showing in this record, that it is just as reasonable to presume that the trial court refused the charges complained of by appellant for the reason that the same principles of law were embodied in other charges given at his instance, and that error is not affirmatively shown. While we recognize the force of the Attorney General's position, the question has been expressed ruled to the contrary in Smith v. State, supra.

This brings us to a consideration of the charges requested by the defendant and refused by the court. In Leonard v. State, 150 Ala. 89, 43 So. 214, the trial court refused among others, charges numbered 9 and 10, which we here set out. Charge 9:

"The court charges you, gentlemen of the jury, that, if any individual juror is not convinced of the defendant's guilt beyond a reasonable doubt and to a moral certainty, you cannot convict."

Charge 10:

"The court charges you, gentlemen of the jury, that each juror is required to be satisfied of guilt of the defendant beyond a reasonable doubt before they are authorized to find a verdict of guilty, and each juror must be separately and segregately so satisfied to support a conviction."

The court, in disposing of the questions presented by the refusal of these charges, said:

"Charges 9 and 10 should have been given. A charge similar to these charges was held good in Mitchell v. State, 129 Ala. 23, 30 So. 348."

The charge in Mitchell's Case we find in these words:

"The court charges the jury that they can convict the defendant, the evidence must be so strong as to convince each juror of his guilt beyond reasonable doubt; and, if after considering all the evidence a single juror has a reasonable doubt of the defendant's guilt arising out of any part of the evidence, then they cannot convict him."

This charge goes no further than to assert the doctrine of a unanimous verdict and the doctrine that a reasonable doubt may arise out of any part of the evidence after a consideration of the whole evidence by the jury, while charge 10 in Leonard's Case goes further than to assert the doctrine of a unanimous verdict, and has a tendency--

"to inculcate the idea that the conclusion of each juror shall be reached and adhered to without the aid of that consideration and deliberation with his fellows which the law intends shall take place in the jury room."

In view of the fact that the court disposed of these two charges in a group and the holdings hereafter to be noticed, it is evident that the vice above pointed out was overlooked in that case. McCoy v. State, 170 Ala. 15, 54 So. 428. In Hale v. State, 122 Ala. 89, 26 So. 237, in passing upon a charge asserting the same proposition, to wit, that the law requires a unanimous verdict, the court speaking by McClellan, C.J., said:

"Several charges asked by defendant

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