Gordon v. State

• Decision Date: 14 June 1906
• Parties: GORDON v. STATE.
• Court: Alabama Supreme Court

41 So. 847

147 Ala. 42

GORDON v. STATE.

Supreme Court of Alabama

June 14, 1906

On Rehearing, July 6, 1906.

Appeal from Circuit Court, Macon County; H. P. Merritt, Special Judge.

"To be officially reported."

Isaiah Gordon was convicted of murder, and he appeals. Affirmed.

The indictment in this case charges defendant with killing Frank Fort by striking him with an instrument to the grand jury unknown, and the second count charges the killing by means unknown to the grand jury. The indictment was preferred by Hon. S. L. Brewer, who was solicitor of the circuit, and the cause was called for trial after his election as judge of the circuit, and H. P. Merritt was agreed upon as special judge to try the cause. The facts necessary to an understanding of the opinion sufficiently appear therein. The evidence tended to show that the defendant killed a baby, Frank Fort by name by picking it up off the bed by one leg and throwing it violently to the floor, breaking and crushing a leg, arm ribs, and head.

At the conclusion of the evidence the defendant requested the following written charges, which were refused: (1) General affirmative charge. (4) "To warrant the jury in convicting this defendant upon circumstantial evidence, the circumstances must be so multiplied as to increase the probability of his guilt to an indefinite extent beyond the reach of mere calculation. The evidence must convince the jury of defendant's guilt beyond a reasonable doubt." (6) "If upon the whole evidence defendant is not established to a moral certainty, the jury must find the defendant not guilty." (9) "I charge you gentlemen, that unless, after carefully weighing all the evidence, you cannot feel an abiding conviction of the defendant's guilt, you must find defendant not guilty." (14) "I charge you, gentlemen, that unless the evidence convinces you beyond all doubt to a moral certainty, and is strong and cogent, you must acquit the defendant." (15) "I charge you that the defendant's guilt must be made out by evidence of a conclusive nature and tendency, and must exclude any reasonable supposition of his innocence." (18) "I charge you, gentlemen, that if you have a reasonable doubt as to whether the killing was done deliberately or premeditatedly, then you cannot find the defendant guilty of murder in the first degree; and if you have a reasonable doubt as to whether the killing was done in malice, then you cannot find the defendant guilty of murder in either degree but only of manslaughter at most; and if, after considering all the evidence, you have a reasonable doubt as to defendant's guilt of manslaughter by arising out of all the evidence, then you should find the defendant guilty of no offense." (19) "I charge you, gentlemen, that you cannot convict the defendant on circumstantial evidence, when it is inconsistent with any reasonable theory of innocence, unless you are so convinced by it that each of you would be willing to act on the decision in matters of the highest importance to yourselves." (20) "If you do not find that the evidence in this case establishes the truth of the charge in the indictment beyond a reasonable doubt and to a moral certainty, a certainty that convinces and directs your understanding and satisfies your reason and judgment, you must acquit the defendant." (21) "If, after examining and weighing carefully all the evidence, there is left in your minds a presumption of innocence in favor of the accused, you must find the defendant not guilty." (22) "I charge you, gentlemen, that circumstantial evidence is wholly inferior in cogency, force, and effect to direct evidence, and that you must feel, after examining and weighing all the evidence, an abiding conviction of the guilt of the defendant; otherwise, you must acquit him." (A) "I charge you, gentlemen, that you must be very cautious and careful in the weight and credence you give to the testimony of the child Susie Fort." (C) "I charge you, gentlemen, that under the evidence the highest degree of murder you can find against the defendant is murder in the second degree." (D) "I charge you, gentlemen, that the evidence in this case should be almost as clear and convincing as direct evidence, or you must acquit the defendant."

Tyson and Simpson, JJ., dissenting in part.

William P. Cobb, for appellant.

Massey Wilson, Atty. Gen., for the State.

SIMPSON J.

The defendant in this case was convicted of the crime of murder in the first degree and the punishment fixed at death.

The first insistence of the defendant is that the court erred in striking from the files, on motion of the solicitor, the defendant's plea of "not guilty, by reason of insanity." It appears that when the defendant was arraigned he had no attorney, and the court appointed two members of the bar to defend him, and the plea of "not guilty" was interposed. When the day for trial arrived, after the jury had been impaneled, the indictment read, and the defendant pleaded, "as he had pleaded before, not guilty," counsel for the defendant asked leave of the court to file the special plea of "not guilty, by reason of insanity," and the court refused to allow the same. This is the statement in the record, but in the bill of exceptions it is stated that, "after the indictment was read to the jury, the defendant's counsel asked leave to file said plea, which plea was duly filed as shown by the record in this case," and that the solicitor then filed a motion (which is set out) to strike said plea from the file, the grounds being, first, "because said special plea was not filed at the time of arraignment of defendant," and, second, "because said special plea was not filed until the special jury was sworn and impaneled and the indictment had been read to the jury," which motion was sustained. The only statement made to the court by the attorneys for the defendant was that at the time of the arraignment the attorneys were entire strangers to the defendant and had no means of ascertaining that said special plea should be interposed. Nothing was said about whether anything could be proved along that line. The statute requires this plea to be filed at the time of arraignment. We cannot say that in this case there was such an abuse of the discretion which rested in the court to allow such a plea at a subsequent stage of the action as to call for a reversal. Code 1896, § 4939; Morrell v. State, 136 Ala. 44, 34 So. 208.

The court properly allowed the witness Susie Fort to testify. She was 12 years old, and showed sufficient knowledge of the obligation of an oath to testify. This she showed by her other answers, notwithstanding she did not understand the question when put in the shape of asking her if she "knew the nature of a judicial oath." As to her being young when the occurrence took place, and as to the memory of them, these were matters which...