Ex parte Hill

• Decision Date: 22 May 1924
• Docket Number: 5 Div. 892.
• Citation: 211 Ala. 311,100 So. 315
• Parties: EX PARTE HILL. v. STATE. HILL
• Court: Alabama Supreme Court

100 So. 315

211 Ala. 311

EX PARTE HILL.

HILL v. STATE.

5 Div. 892.

Supreme Court of Alabama

May 22, 1924

Certiorari to Court of Appeals.

Petition of Bud Hill for certiorari to the Court of Appeals to review and revise the judgment and decision there rendered in the case of Hill v. State, 100 So. 314. Writ denied.

Jas. W Strother, of Dadeville, for petitioner.

Harwell G. Davis, Atty. Gen., opposed.

THOMAS J.

After a discussion of rulings on the introduction of evidence, the further announcement of the Court of Appeals that "the court did not err in any of its rulings" embraced the refusal of defendant's charge 1. It is unnecessary to refer the same to the Court of Appeals for further treatment. Having ruled thereon, a case within Ex parte Cowart, 201 Ala 55, 77 So. 349, is not presented.

Since there was no specific discussion of the charge, it should be said charges invoking like principles of law of circumstantial evidence have been considered.

The rulings of the Court of Appeals on the subject when considered are not inconsistent. See Gunn v. State, 7 Ala. App. 132, 61 So. 468; Wilson v. State, 7 Ala App. 134, 61 So. 471; Minor v. State, 15 Ala App. 556, 74 So. 98; Newell v. State, 16 Ala. App. 77, 75 So. 625; Machem v. State, 16 Ala. App. 170, 76 So. 407; Jones v. State, 18 Ala. App. 116, 90 So. 135. It should be noted, however, that these cases last cited had no specific charge for consideration, as was instant charge 1. In the Jones Case, supra, the approval was of the oral charge declaring that the test is "not that the circumstances be as strong as the testimony of one or more eyewitnesses, but the test is, Do the circumstances produce a conviction of guilt in the minds of the jury to a moral certainty?" The general statement of law that follows cannot be said to authorize the giving by the trial court of the charge under discussion. However this may be, the Newell and Jones Cases do not appear to have had the consideration of this court on certiorari. The Bryant Case, 13 Ala. App. 206, 68 So. 704, said of the charge that "if not otherwise faulty" it "ignored consideration of the evidence," etc. Thus the decisions of the Court of Appeals are reconcilable.

In Chisolm v. State, 45 Ala. 66, it is said of the sufficiency of circumstantial evidence that it should be "such as to exclude a rational probability of innocence" of the defendant. In Salm v. State, 89 Ala. 56, 58, 8 So. 66, charge 20, on circumstantial evidence, that was approved, asserted the proposition that-

"The evidence must be strong and cogent; and unless it is so strong and cogent as to show the defendant's guilt to a moral certainty, the jury must find him not guilty." (Italics supplied.)

In Ex parte Acree, 63 Ala. 234, it is declared that, where the evidence was circumstantial, the defendant should not be convicted on such evidence "unless it shows by a full measure of proof that the defendant is guilty"; such proof is insufficient "unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused"; and "no matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof," etc. (Italics supplied.)

A charge couched in the general statement of law to be found in Ex parte Acree, supra, was approved in Gilmore v. State, 99 Ala. 154, 157, 160, 13 So. 536, while a charge of like principle, or similar to that being considered, was condemned as argumentative in Shepperd v. State, 94 Ala. 102, 10 So. 663, Potter v. State, 92 Ala. 37, 9 So. 402, Dennis v. State, 112 Ala. 65, 68, 20 So. 925, and Rigsby v. State, 152 Ala. 9, 44 So. 608.

The subject and form of the charge approved in Gilmore's Case, supra, was given specific treatment and condemned as erroneous in Thomas v. State, 106 Ala. 19, 22, 17 So. 460, 461, where the court said:

"After stating the true rule, the charge went further and in its closing statement asserted that the full measure of proof required was not complied with, if the circumstances could be reasonably reconciled with the theory that 'the defendant may be innocent."'

In the case of Compton v. State, 110 Ala. 24, 20 So. 119, a charge seeking to instruct that it was the duty of the jury to adopt that construction favorable to the defendant rather than that which is unfavorable, "if there be two reasonable constructions which can be given to facts proven," etc., was condemned. And in Barnes v. State, 111 Ala. 56, 20 So. 565, it was declared that a charge is bad that requires or authorizes an acquittal if the evidence could be reconciled "with a possibility that another than the defendant committed the offense."

In Turner v. State, 124 Ala. 59, 27 So. 272, Mr. Justice Sharpe said of a charge instructing for the acquittal of defendant if the jury could reconcile the evidence with the theory that some other person may have done the act that it "appears to have been copied from the opinion rendered in Ex parte Acree, 63 Ala. 234," and that the effect of the Acree Case, 63 Ala. 234, was that it was "not authority for charging the jury in the language used." The same justice made a like announcement in Oakley v. State, 135 Ala. 29, 33 So. 693, where the same conclusion was announced upon the authority of Bohlman v. State, 135 Ala. 45, 33 So. 44. There the justice specifically deals with the departure from the rule that was announced in Gilmore's Case, 99 Ala. 154, 13 So. 536, the overlooking of Shepperd v. State, 94 Ala. 102, 10 So. 663, and Dennis v. State, 112 Ala. 65, 20 So. 925, and held that such charge now for consideration was erroneous, and that the Gilmore Case, so far as it holds to the contrary, is overruled. See, also, Bowen v. State, 140 Ala. 65, 37 So. 233; Parham v. State, 147 Ala. 57, 42 So. 1.

In Parham v. State, supra, Fowler v. State, 155 Ala. 21, 28, 45 So. 913, and Phillips v. State, 162 Ala. 23, 24, 50 So. 194, Mr. Justice Denson condemned charges such as that under consideration.

In Pickens v. State, 115 Ala. 42, 22 So. 551, the defendant was tried for murder, and the evidence in...