Hurston v. State, 5 Div. 253

• Decision Date: 13 January 1938
• Docket Number: 5 Div. 253
• Citation: 235 Ala. 213,178 So. 223
• Parties: HURSTON v. STATE.
• Court: Alabama Supreme Court

178 So. 223

235 Ala. 213

HURSTON v. STATE.

5 Div. 253

Supreme Court of Alabama

January 13, 1938

Appeal from Circuit Court, Lee County; Jas. W. Strother, Judge.

Elam alias Elon, Hurston was convicted of murder in the second degree, and he appeals.

Affirmed.

Duke &amp Duke, of Opelika, for appellant.

A.A Carmichael, Atty. Gen., and B.W. Simmons, Asst. Atty. Gen., for the State.

BOULDIN Justice.

While not required so to do, counsel for appellant has made an assignment of errors on the record and argued in brief the various rulings relied upon as ground for reversal.

While not relieving the court from the duty to examine the record for any and all reversible errors, this practice is helpful. In the instant case, we consider the points raised in the order presented in brief.

The defendant was convicted of murder in the second degree. Without dispute, defendant killed the deceased, A.C. Wright, by shooting him with a shotgun.

Self-defense, and provocation going to the degree of the offense, were the main issues of fact.

Defendant's refused charge No. 2 reads:

"I charge you gentlemen of the jury, if the evidence of the State consists in statements of witnesses, the truth of which the jury have reasonable doubt, you cannot convict on such evidence, although you may not believe the testimony of defendant's witnesses."

In Segars v. State, 86 Ala. 59, 5 So. 558, 559, the refusal of a charge to like effect was held reversible error under the state of the evidence in that case. It appeared the state relied upon the testimony of a single witness, impeached somewhat by contradictory statements, and defendant's evidence was wholly exculpatory.

The court emphasized the rule that prima facie evidence of guilt in a criminal case does not rebut the presumption of innocence or shift the burden of proof. In conclusion, it was said:

"The evidence on the part of the defendant being wholly exculpatory, the effect of refusing the charge is to shift the burden of proof, on a prima facie case of guilt being made by the prosecution."

Literally, of course, a refused charge, one which never goes to the jury, cannot shift the burden of proof. The real effect of the holding was that defendant was entitled to an instruction that prima facie evidence of guilt does not shift the burden of proof. Otherwise stated, the evidence of guilt must convince the jury beyond a reasonable doubt. If the state's evidence is not convincing beyond a reasonable doubt, and the evidence for defendant is wholly exculpatory, adding nothing to the weight of the state's evidence, when considered as a whole, the verdict should be not guilty.

Since the adoption of Code, § 9509:

"The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury, in the court's general charge or in charges given at the request of parties." The trial court in his oral charge fully covered the law touching the burden and measure of proof, giving, among others, such instructions as these:

"The State of Alabama takes upon itself the burden of proving that charge to a jury beyond a reasonable doubt. And the defendant goes into the trial as every defendant does, with the presumption of innocence around him. The law presumes him to be innocent, and that presumption remains with him and it remains with him as a matter of evidence until the evidence is brought to you, presented to you sufficient to convince you beyond a reasonable doubt that he is guilty. ***

"If there is a reasonable doubt existing in your minds after considering all the evidence painstakingly, conscientiously under your oaths as jurors to find a true verdict, if you have a reasonable doubt then your verdict should be one of acquittal."

The court further instructed the jury that the credibility of witnesses, and the weight of their testimony, was wholly for the jury.

These instructions fully covered the rules of law to which refused charge No. 2 was directed, and in more logical and understandible form. Since the adoption of rule 45 and Code, § 9509, it is not reversible error in any case to refuse charge 2, supra, where the trial court in his oral charge, or in given charges, has instructed the jury in substance and effect as in this case.

Apart from given instructions, charge 2 is properly limited to the class of cases in which it has been approved. Where phases of the defendant's evidence tend to corroborate and strengthen the state's evidence, when considered as a whole, a charge to like effect as No. 2 should be refused as misleading. McConnell v. Adair, 147 Ala. 599, 41 So 419; Koch v. State, 115 Ala. 99, 22...