Hudson v. State
| Decision Date | 26 January 1928 |
| Docket Number | 6 Div. 52 |
| Citation | 116 So. 800,217 Ala. 479 |
| Parties | HUDSON v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied with Modification May 10, 1928
Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.
Will Hudson was convicted of murder in the first degree, and he appeals. Affirmed.
Still Hunter, of Jasper, and John Stephenson, of Parrish, for appellant.
Charlie C. McCall, Atty. Gen., and Merwin T. Koonce, Asst. Atty Gen., for the State.
The motion for a continuance was addressed to the sound discretion of the trial court, and the exercise of this discretion is not subject to review except for gross abuse. Centennial Ice Co. v. Mitchell, 215 Ala. 688, 112 So. 239; Continental Casualty Co. v. Ogburn, 186 Ala. 398, 64 So. 619.
In the absence of a showing as to what the testimony of the absent witnesses would be, if present, it cannot be affirmed that the overruling of the motion was prejudicial, or that it was an obvious and palpable abuse of the trial court's discretion.
D.S. Pate Lumber Co. v. Davis et al., 215 Ala. 547, 112 So. 124; Knowles v. Blue, 209 Ala. 27, 95 So. 481.
If it should be conceded that the motion to quash the indictment stated sufficient grounds, a question of serious doubt, in view of the provisions of section 5202 of the Code of 1923, yet the evidence offered in support of the motion by the defendant disproved all grounds of the motion except the fifth, which asserts that the provisions of the statute (Code 1923, § 8665), requiring four grand juries to be organized in counties of more than 50,000 population so that in such counties two grand juries will be convened during each six months of the year, has been violated.
The appellant advances no argument showing how a lack of compliance by the court with this statute, which in this respect is directory merely, could in any way affect his rights or the validity of the indictment, and after due consideration we are unable to find any merit in this ground of his motion.
Charge 2, requested by the defendant and refused by the court, is in the following language: "Gentlemen of the jury, if the evidence or any part thereof, after a consideration of the whole of such evidence generated a well-founded doubt of defendant's guilt, the jury must acquit him;" and the appellant now insists that the refusal of this charge constituted reversible error, citing as authorities to sustain this contention Hunt v. State, 135 Ala. 1, 33 So. 329; Turner v. State, 124 Ala. 59, 27 So. 272.
The charge approved in Hunt's Case was in the following language: "If the evidence or any part thereof after a consideration of the whole of such evidence generates a well-founded doubt of defendant's guilt, the jury must acquit him," while the charge approved in Turner's Case was: "If there is generated in the minds of the jury by the evidence in this case or any part of the same, after a consideration of the whole of such evidence, a well-founded doubt of defendant's guilt, then the jury must acquit him."
A comparison of these charges demonstrates not only that the charge in question is bad in form, but that it possesses misleading tendencies. The charges heretofore approved speak in the present tense, while the charge in question speaks in the past tense, and has a tendency to inculcate the idea that if after a consideration of the whole evidence, if any part thereof generated a reasonable doubt of defendant's guilt, he should be acquitted, though after more mature deliberation and consideration by the jury of the evidence, this doubt was dispelled. It is not an uncommon experience for first impressions arising from the facts of a given case, when considered, to be attended with doubt, while on more mature deliberation such doubt disappears. It is enough to justify the refusal of the charge that it does not speak "in the correct and appropriate terms of the law." Ex parte State ex rel. Atty. Gen. (Bush v. State) 211 Ala. 1, 100 So. 312.
Refused charge 3 justified the defendant in shooting the deceased though he was not free from fault in bringing on the difficulty, and was refused without error. While the Court of Appeals, in Thomas v. State, 18 Ala.App. 493, 93 So. 287, approved a charge identical with charge 3, this, no doubt, resulted from a failure to observe that while it correctly placed the burden of showing that defendant was not free from fault, on the state, it did not give effect to proof of this fact or predicate defendant's right to an acquittal on the failure of the state to meet this burden. Bluett v. State, 151 Ala. 41, 44 So. 84; Id., 161 Ala. 14, 49 So. 854; O'Rear v....
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