Duke v. State
| Decision Date | 24 April 1952 |
| Docket Number | 7 Div. 146 |
| Citation | 58 So.2d 764,257 Ala. 339 |
| Parties | DUKE v. STATE. |
| Court | Alabama Supreme Court |
Scott & Dawson, Fort Payne, and Roy D. McCord, Gadsden, for appellant.
Si Garrett, Atty. Gen., and M. Roland Nachman, Jr., Asst. Atty. Gen., and Wm. H. Sanders, Montgomery, of counsel, for the State.
The following charges were refused to defendant:
I. 'The court charges the jury that the test of sufficiency of circumstantial evidence in a criminal case is whether the circumstances as proved or capable of explanation upon any reasonable hypothesis consistent with the defendant's innocence, and, if they are capable of such explanation, then the defendant should be acquitted.'
J. 'The court charges the jury that no matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the defendant is not shown by the full measure of proof which the law requires.'
L. 'The court charges the jury that the probability that some other person may have done the shooting is sufficient to create a reasonable doubt of the guilt of the defendant, and therefore for his acquittal.'
O. 'The court charges the jury that the evidence against the defendant in this case is party circumstantial, and his innocence should be presumed by the jury until his guilt is established by evidence, in all the material aspects of the case, beyond a reasonable doubt, and to a moral certainty.'
Dwight Duke, the appellant, was tried under an indictment charging him with the offense of first-degree murder. Upon his trial he was found guilty of murder in the second degree and his punishment was fixed by the jury at 25 years in the state penitentiary. On the trial he denied the offense entirely and offered an alibi. A motion for new trial was denied. From the foregoing judgment and sentence the appellant brings an appeal to this court.
The evidence presented by the state tended by show the following. On the night of December 31, 1950, J. F. Giles and his wife Media Floy Giles attended church services near their home in DeKalb County. J. F. Giles returned home first for the night. When his wife returned home somewhat after midnight he opened the door for her and they both went to sleep in a bedroom, a room opening off the entrance hall of their home. The door to this room was locked with a thumb latch.
They were awakened by the breaking down of the door and by the curses of a man identified by J. F. Giles as the defendant, Dwight Duke, who entered the room and threatened them both with his shotgun. Mrs. Giles arose to remonstrate with the intruder. She addressed him by the name of Dwight. He declared with an oath that he intended to kill both of them. She tried to push him out of the room and as the did so, the intruder fired and she fell, mortally wounded, in the hall outside the bedroom door.
By this time J. F. Giles had seized his own shotgun, which he kept in the room, and had gone to the door. The assailant had now gone outside of the house. He continued to curse J. F. Giles and fired his gun three times more. Then he drove away in his truck. J. F. Giles did not fire at him but ran immediately to the home of a neighbor and summoned help.
J. F. Giles not only identified the defendant as the one who fired the fatal shot at his wife but also described the truck which corresponded with that owned by the defendant.
Officers who investigated the killing found a 16-gauge shotgun shell on the floor of the hall. It was marked and turned over to ballistics experts in the State Department of Toxicology. A 16-gauge shotgun which the defendant admitted he had borrowed from a friend and which defendant admittedly had in his possession during the time of the killing, was seized by the sheriff at the home of its owner, the defendant having returned it there just a short time before the seizure by the sheriff.
Dr. C. J. Rehling, Director of the State Department of Toxicology and a qualified expert in firearms, testified that he made a microscopic examination of the firing-pin impression on the shell found at the scene of the crime and compared it with the impression on two test shells fired from the gun which the defendant had during the time of the killing. He showed that as a result of his examination, the shell found at the scene of the killing had been fired from the gun which the defendant admitted having had in possession.
A neighbor of the Giles heard the shots and heard a truck or car pass by on the road coming from the direction of the Giles' house.
There was evidence tending to show that the defendant, who had formerly been a tenant farmer on the Giles' farm, bore ill will toward them and had threatened to get even with them. Some two or three months previous to the killing, he had been arrested on the complaint of J. F. Giles for trading mortgaged property. The charge was apparently dropped but the defendant moved away from the Giles' farm shortly thereafter.
The defendant denied that he had anything to do with the killing and offered an alibi. According to him he left his home near Centre, Alabama, with a borrowed shotgun in his possession on the Friday preceding the killing. Further according to him, he went to Birmingham and stayed there until Sunday morning, December 31, at which time he went to Bradford, Alabama, where some chicken fights were in progress. There were a considerable number of people at these fights and several witnesses testified to having seen him there in the afternoon and some as late as dusk.
The defendant testified that he left the chicken fights at dusk, pawned a radio with a friend for $10, obtaining more whiskey--he had already been drinking during the day--and started for home in his truck. According to him he stopped and slept in his truck and finally arrived in Gadsden about daybreak.
The last person to see the defendant on this night and to corroborate the story of the defendant was Charlie Green. He testified that he was out coon hunting and the defendant drove up in his truck about one o'clock a. m. and asked him where he could obtain some whiskey. The witness testified that defendant appeared to be drunk. No witness was produced by the defense who saw the defendant later that night. The time of the shooting was not exactly fixed, but it occurred about 2:30 or shortly prior thereto when Sheriff Garrett testified he arrived at the Giles' home.
In rebuttal there was testimony offered by the state of several witnesses who had attended church services which Mr. and Mrs. Giles had attended. These witnesses testified that they saw the defendant standing outside the church that night between eleven and twelve o'clock and one had exchanged remarks with the defendant at that time.
I. A ground for the motion for a new trial is that one of the jurors, Travis W. Payton, is a cousin by consanguinity to the son-in-law of the deceased person, Mrs. Media Floy Giles. As a matter of fact Travis W. Payton is a first cousin of the son-in-law of the deceased, Mrs. Media Floy Giles. Under subsection 4, § 55, Title 30, Code of 1940 a ground for challenge of the prospective juror is that he is connected by consanguinity within the 9th degree. It is obvious that the deceased and the juror are not related by consanguinity at all, because there is no blood relationship between the two. Vol. 8A, Words and Phrases, page 177.
A further ground for the motion for new trial is that since the juror, Travis W. Payton, is a first cousin of the son-in-law of the deceased, he is brought by affinity within the degree of kinship set out in subsection 4, § 55, Title 30, Code of 1940 and therefore was subject to challenge as a juror. Subsection 4 of this section provides that persons may be challenged who are connected by affinity within the 5th degree (computing according to the rules of the civil law) with the person alleged to be injured. But the deceased and the juror are not related by affinity within the 5th degree. The civil law method of computing degrees of kinship is to begin the count with one of the persons in question and...
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...III sets out those statutes which make certain enumerated relatives ineligible for an award.10 See, for example, Duke v. State, 257 Ala. 339, 58 So.2d 764 (1952) (citing Kirby v. State, 89 Ala. 63, 8 So. 110 (1890)); McDaniel v. State, 228 Ark. 1122, 313 S.W.2d 77 (1958) (citing North Arkan......
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...charges emphasizing the law of circumstantial evidence are properly refused in view of direct proof of accused's guilt. Duke v. State, 257 Ala. 339, 58 So.2d 764. Mindful of our duty enjoined upon us by statute, we have carefully searched the record for errors affecting the substantial righ......
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