Gilbert v. State
| Decision Date | 24 March 1925 |
| Docket Number | 7 Div. 91 |
| Citation | 20 Ala.App. 565,104 So. 45 |
| Parties | GILBERT v. STATE |
| Court | Alabama Court of Appeals |
Rehearing Denied April 14, 1925
Appeal from Circuit Court, De Kalb County; W.W. Haralson, Judge.
Parris Gilbert was convicted of murder in the second degree, and he appeals. Reversed and remanded.
J.V Curtis and C.A. Wolfes, both of Ft. Payne, for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
It cannot be questioned that the conviction of this appellant rested upon the testimony of state witness Dave Upton. In other words, in the absence of this witness' testimony there was nothing in this case to even cast a suspicion upon this defendant as to the commission of the crime charged. There was no evidence whatever of any bad feeling between deceased and defendant. No motive or reason for his having committed the offense was shown; no confession upon the part of defendant; in fact, nothing was shown of an incriminatory nature except the statement of said witness Upton, who merely testified that between sundown and dark on Saturday afternoon, March 22, 1924, he saw this defendant and Bascom Gilbert and Walter Gilbert (the deceased) walking up the road together about 150 or 200 yards from Walter Gilbert's house. Witness said that he (witness) was out of the road in a thick patch of corn. The dead body of Walter Gilbert was discovered the following Monday morning in some wood in a pasture between a half and three quarters of a mile from the main road.
We pretermit a discussion of the many discrepancies contradictions, and uncertainties apparent in the testimony of witness Upton, and also the tendency of other evidence flatly in contradiction thereof; namely, the testimony of young Marvin Gilbert, son of the deceased man, as well as that of several other witnesses. But, as stated hereinabove there can be no controversy that the conviction of this defendant rested solely upon the testimony of said state witness Dave Upton, and that in the absence of his testimony the duty would have rested upon the court to direct a verdict in favor of defendant, and to order his discharge. This being true, refused charge 3 was in point and should have been given, for the jury are not authorized to find the defendant guilty on the evidence of a witness, upon whose testimony the question of guilt depends, if they have a reasonable doubt of the truth of his statements.
For like reason, it was error to refuse charge 11 requested by defendant. Mills v. State, 1 Ala.App. 76, 55 So. 331; Estes v. State, 18 Ala.App. 606, 93 So. 217; Segars v. State, 86 Ala. 59, 5 So. 558; Kilgore v. State, 19 Ala.App. 181, 95 So. 906; McHan v. State (Ala.App.) 101 So. 81.
Refused charge 5, being predicated upon the consideration of all the evidence, should have been given. Elmore v. State, 92 Ala. 51, 9 So. 600.
We see no reason why refused charge 8 should not have been given. This charge was not abstract under the evidence in this case; to the contrary, it relates to the vital issue involved upon this trial. In the oral charge the court stated:
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Ledbetter v. State
... ... State, 1 Ala.App. 76, 55 So. 331; Estes ... v. State, 18 Ala.App. 606, 93 So. 217; Kilgore v ... State, 19 Ala.App. 181, 95 So. 906; Brown v ... State, 20 Ala.App. 39, 100 So. 616; Jones v ... State, 20 Ala.App. 96, 101 So. 67; Bufford v ... State, 20 Ala.App. 197, 101 So. 287; Gilbert v ... State, 20 Ala.App. 565, 104 So. 45 ... In the ... case of Crews v. State, 22 Ala.App. 564, 117 So ... 801, this court certified an abstract proposition to the ... Supreme Court. The inquiry related to the instant charge. In ... response, 218 Ala. 145, 117 So. 801, Justice ... ...
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Slayton v. State
...to be misleading. Since the Baxley Case, the question has been before this court several times, notably in the case of Gilbert v. State, 20 Ala.App. 565, 104 So. 45, where it was said, "as stated hereinabove, there can be no controversy that the conviction of this defendant rested solely up......
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Clayton v. State
... ... refusal was error. Leatherwood v. State, 17 Ala ... App. 498, 85 So. 875 ... Refused ... charges 12 and 12-A under the facts in this case should have ... been given, and the refusal of these charges constitute ... error. Gilbert v. State, 20 Ala. App. 565, 104 So ... 45; Baxley v. State, 18 Ala. App. 277, 90 So. 434 ... Without the testimony of the two witnesses ... [123 So. 259] ... named in these charges the state would have been left without ... sufficient evidence to sustain a conviction ... ...
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Foster v. State, 8 Div. 243
...It is likely faulty in other aspects. Davis v. State, 8 Ala.App. 147, 62 So. 1027. Instruction number 19 was approved in Gilbert v. State, 20 Ala.App. 565, 104 So. 45. In Shikles v. State, 31 Ala.App. 423, 18 So.2d 412, we did not specifically condemn the charge, but we held that it was not......