McCoy v. State

• Decision Date: 18 January 1911
• Citation: 54 So. 428,170 Ala. 10
• Parties: MCCOY v. STATE.
• Court: Alabama Supreme Court

54 So. 428

170 Ala. 10

MCCOY v. STATE.

Supreme Court of Alabama

January 18, 1911

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Mac McCoy was convicted of murder, and appeals. Affirmed.

Defendant was charged with killing one Speigel. There was evidence tending to show that defendant was the man who fired the pistol that killed the deceased, and that there were others with him. The defense was an alibi.

The following charges were refused the defendant: (2) "The court charges you, gentlemen of the jury, that the accused is presumed by the law to be innocent until his guilt of the offense charged against be proved to the satisfaction of each juror beyond a reasonable doubt." (5) "The court charges the jury that, to justify a conviction of crime on circumstantial evidence, it must be inconsistent with any reasonable theory of innocence." (7) "The court charges you, gentlemen of the jury, that the innocence of the defendant must be presumed by the jury until the case against him is proven in all its material circumstances beyond all reasonable doubt, to find him guilty as charged. The evidence must be so strong and cogent and unless it is so strong and cogent as to show his guilt to a moral certainty, the jury must find him not guilty." The eighth charge is set out in the opinion.

George H. Shreve, for appellant.

Alexander M. Garber, Atty. Gen., and Phil H. Stern, Sol., for the State.

SAYRE J.

The question for consideration is whether the court erred in refusing separately a number of charges requested by the defendant. In view of the evidence to be found in the record it is scarcely necessary to discuss the general charge, which the defendant asked. It was properly refused. The weight and credibility of the evidence was a matter for the determination of the jury.

Charge 2 was misleading, and was refused without error. If used in a case where an offense is charged which includes no offense of lower grade, and where in consequence the jury is limited in its finding to the alternative of a conviction as charged or an acquittal, this charge would state a sound proposition of law. In the case at bar the indictment in terms charged murder in the first degree, and in a proper state of the evidence the defendant might have been convicted of any lesser degree of unlawful homicide. In the event of a conviction of murder, the responsibility of fixing the degree rested upon the jury, and of it they could not be relieved by the court, though no circumstance of extenuation was shown. So, then, to overcome the presumption of innocence, and to warrant a verdict of guilt, it was not essential that the evidence should satisfy the jury beyond a reasonable doubt of the defendant's guilt as charged.

Charge 5 is a copy of a charge which this court, in Pickens v State, 115 Ala. 42, 22 So. 551, and Bowen v State, 140 Ala. 65, 37 So. 233, held it was error to refuse. In both of those cases, however, the incriminating evidence was wholly circumstantial. Here the evidence is in part circumstantial; but an eyewitness testified directly to the defendant's presence at, and participation in, the killing of the deceased. In this state of the case, the charge was well refused, because it tended to lead the minds of the jury away from the direct evidence, and to a decision of the issue upon consideration of the strength or weakness of the circumstantial evidence alone, whereas there was direct evidence which, if credited by the jury, would have justified a verdict of guilt. Dennis v. State, 118 Ala. 72, 23 So. 1002; Gordon v. State, 147 Ala. 42 41 So. 847.

Charge 7 employs the words in the same sequence of a charge which had approval in Gilmore v. State, 99 Ala. 154, 13 So. 536, but with a difference in respect to punctuation and division into sentences, which, to say the least, impairs the clearness of the idea intended to be expressed. The charge there was approved as proper in the case of an indictment for burglary, and what has been already said of charge 2 may be repeated as applicable to the use of its first clause in the case here. In the recent case of Bailey v. State, 53 So. 296, where burglary and larceny were charged, the same words were used again...