Ex parte Grimmett

• Decision Date: 09 November 1933
• Docket Number: 7 Div. 212.
• Citation: 228 Ala. 1,152 So. 263
• Parties: Ex parte GRIMMETT.
• Court: Alabama Supreme Court

152 So. 263

228 Ala. 1

Ex parte GRIMMETT.

7 Div. 212.

Supreme Court of Alabama

November 9, 1933

Certiorari to Court of Appeals.

Petition of Bennett E. Grimmett for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Grimmett v. State, 152 So. 262.

Writ granted; reversed and remanded.

ANDERSON C.J., and GARDNER, J., dissenting.

J. J Cockrell, of Talladega, for petitioner.

Thos E. Knight, Jr., Atty. Gen., opposed.

BROWN Justice.

The Court of Appeals, in the opinion brought under review, by the petition for the writ of certiorari, applying the rule which obtains in civil cases in this jurisdiction, holds that "A scintilla of evidence, going to support the state's contention, necessitates reference of issue raised thereby to the jury for decision, at least in first instance"-citing in support of this holding Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411.

After an examination of the authorities, we have been unable to find any decision of this or any other court of last resort that has invoked the "scintilla rule" to uphold a criminal prosecution.

The general rule, to which there are some exceptions, is that, on the trial of the issue in civil cases, the parties enter upon the trial, unaided by any presumptions, with the burden on the party asserting the affirmative of the issue, but in criminal prosecutions, where the plea of not guilty is interposed, the defendant goes to trial attended by the presumption of innocence, which, under the uniform holdings of this court, is a matter of evidence which attends him through the trial. Bryant v. State, 116 Ala. 445, 23 So. 40; Newsom v. State, 107 Ala. 133, 18 So. 206.

This rule has been applied in civil trials where the issue involves criminal acts or conduct. Freeman v. Blount, 172 Ala. 655, 55 So. 293; Mutual Life Ins. Co. of New York v. Maddox, 221 Ala. 292, 128 So. 383.

While this court has discouraged the practice of giving the affirmative charge against the defendant in criminal prosecutions, we have affirmed cases where the affirmative charge was so given, and the evidence was clear, positive, and without dispute in proof of every element of the offense. Jones v. State, 96 Ala. 56, 11 So. 192; Johnson v. State, 91 Ala. 70, 9 So. 71; Olmstead v. State, 89 Ala. 16, 7 So. 775.

But, where the evidence is not positive and clear, affirming every fact essential to guilt, or is circumstantial, or there is any evidence, even a scintilla, exculpating the defendant, this, coupled with the presumption of innocence, necessitates a denial of an affirmative instruction for the state. Taylor v. State, 121 Ala. 24, 25 So. 689; Parrish v. State, 139 Ala. 16, 36 So. 1012. This is the effect of the holding on rehearing in Mutual Life Ins. Co. of New York v. Maddox, supra.

In Randolph v. State, 100 Ala. 139, 14 So. 792, 793, dealing with the sufficiency of the evidence to require a submission of the issues to the jury, raised by defendant's motion to exclude the evidence of the state and discharge the defendant, it was observed: "This question was raised in behalf of both defendants by a joint motion on their part, made upon the close of the testimony for the prosecution, 'to exclude all the evidence offered by the state, and to discharge the defendants.' This motion should have been granted. The court's denial of it was to rule, in effect, that there was evidence which, if believed by the jury, would authorize a conviction."

And again in Howard v. State, 108 Ala. 571, 575, 18 So 813, 815: "The motion made by the defendant, on the close of the evidence offered by the state, for the exclusion of the evidence because of its insufficiency to support a conviction, was properly overruled. On every trial by jury in a civil or criminal case, there may arise a preliminary question,-a question of law the court must decide,-and that is whether the party on whom rests the burden of proof has introduced evidence which ought properly to be submitted to the jury in support of the issue he is bound to maintain. * * * The degree of the evidence, whether it must be of such force that, in the opinion of the court, the jury could reasonably conclude the issue was proved, or the burden of proof satisfied; or whether it...