Minor v. State

• Decision Date: 30 January 1917
• Docket Number: 8 Div. 298
• Citation: 15 Ala.App. 556,74 So. 98
• Parties: MINOR v. STATE.
• Court: Alabama Court of Appeals

74 So. 98

15 Ala.App. 556

MINOR v. STATE.

8 Div. 298

Court of Appeals of Alabama

January 30, 1917

Appeal from Circuit Court, Colbert County; C.P. Almon, Judge.

George Minor was convicted of manslaughter, and he appeals. Affirmed.

The following charges, noted in the opinion, and not covered by charges given, were refused to defendant:

(7) "There may be a reasonable doubt of defendant's guilt in your mind which does not grow out of the evidence but which arises from a want of evidence."

(8) "A reasonable doubt is that want of repose and confidence which an honest man has in the correctness of a conclusion which he is about to make after he has given the question under consideration his best thought."

(9) "The state must satisfy your mind to a moral certainty that defendant is guilty before you can convict him."

(10) "I charge you that the burden of proof is never upon the accused to establish his innocence or to disprove the facts necessary to establish the crime for which he is indicted. The burden of proof is on the prosecution from the beginning to the end of the trial, and applies to every element necessary to constitute the crime."

(11) "No matter how strong the circumstances of this case may be, if they can be explained reasonably and consistently with defendant's innocence, then the law demands an acquittal at their hands."

(12) "If, after subjecting the facts in this case to the test of reason, there is still a doubt of guilt, the jury should acquit."

(13) "It is not enough that one phase of the testimony is consistent with the theory of the guilt of defendant."

Unnumbered and unlettered charge: "I charge you that if you would not be willing to act upon the evidence in this case if it were in relation to matters of the most solemn importance to your own interest, then you must find defendant not guilty."

(22) "I charge you that the danger that will excuse one for killing another need not be real or actual. If the jury believe from all the evidence in this case that the appearance of danger surrounding defendant at the time of the killing was such as to produce a reasonable belief in the mind of defendant that his life was in danger or that he was about to suffer great bodily harm--defendant being without fault at the time--the law holds him harmless, and the jury should acquit."

(23) "The law is a reasonable master, and if the evidence shows you that at the time of the killing the appearance of danger surrounding defendant was such as to produce a reasonable belief in the minds of defendant that his life was in danger, or that he was about to suffer great bodily harm, and defendant was without fault in bringing on the difficulty, the jury ought to acquit him."

(24) "I charge you that defendant was without fault in provoking or bringing on the difficulty, and if the conduct of deceased was such at the time of the killing as to reasonably impress the mind of defendant that his intention was to take his life or do him great bodily harm, then I charge you that the law did not require defendant to wait and see what would be the result of the appearances, but defendant was authorized to act upon the appearances anticipate and avert the threatened danger, even to the taking of the life of his assailant."

(25) "The jury must find defendant not guilty if the conduct of defendant upon a reasonable hypothesis is consistent with his innocence."

(28) "The only foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence beyond a reasonable doubt and to a moral certainty that defendant was guilty as charged in the indictment, to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt, and if the prosecution has failed to furnish such measure of proof, and so impress the minds of the jury of his guilt, they should find him not guilty."

(29) "Before you can convict, you must be satisfied to a moral certainty not only that the proof is consistent with the guilt of defendant, but that it is wholly inconsistent with every other rational conclusion, and unless the jury are so convinced by the evidence of defendant's guilt, that they would each venture to act upon that decision, in matters of the highest concern and importance to his own interest you must find defendant not guilty."

(32) "The requirement that juries must believe that defendant is guilty from the evidence beyond a reasonable doubt is not a fiction of law, but is intended as a substantial shield against conviction until that degree of proof is made which leads the jury to believe that defendants cannot reasonably be guiltless under the evidence."

(33) "If, after subjecting the facts in this case, to the test of reason, there is still a doubt of the guilt of defendant, the jury should acquit."

(34) "It is not your duty to convict such defendant to vindicate the law or to improve public morals, unless the evidence is so convincing as to lead your minds to the conclusion that defendant cannot be innocent."

(C) "The presumption of innocence that the law throws around one who is charged with crime is intended to be a shield against conviction until his guilt is, from credible evidence, beyond all reasonable doubt and to a moral certainty."

(D) "Evidentiary facts must all be proved, and the existence of none of them can be presumed. The several circumstances upon which the conclusion depends must be fully established by proof, they are facts, from which the main fact is to be inferred, and they are to be proved by competent evidence, and the same weight and force of evidence as if each was itself the main fact in

issue."

(35) "Good character, if proven, when taken in connection with the whole evidence may have the effect to generate such a doubt as to authorize an acquittal even when the jury was otherwise entertained thereby."

(36) "If defendant was without fault in bringing on the difficulty, and if he was in imminent peril, or reasonably appeared to be, of loss of life, or of suffering great bodily harm, then it was not his duty to retreat unless he could do so in safety."

(40) "The court charges the jury that if defendant was without fault in bringing on the difficulty, and if, at the time of the homicide, the peril appeared so apparent as to lead a reasonable mind to the belief that it actually existed, a present, impending, imperious necessity in order to save life, or in order to save himself from fatal bodily harm, to kill deceased, then he had a right to kill him, and the jury must acquit him on the ground of self-defense."

Kirk Carmichael & Rather, of Tuscumbia, for appellant.

W.L. Martin, Atty. Gen., and H.G. Davis, Asst. Atty. Gen., for the State.

BRICKEN J.

The defendant was indicted for murder in the first degree, and was convicted of the offense of manslaughter in the first degree, and sentenced to ten years' imprisonment in the penitentiary. From the judgment of conviction the present appeal is prosecuted.

The defendant complains that errors prejudicial to him were committed on the trial in rulings of the court on evidence and the refusal to give certain instructions to the jury requested by him in writing. The first ruling of the court complained of as error was in permitting John Middleton, a witness for the state, against the defendant's objection, to testify as to the particulars of that part of the difficulty between the deceased and the defendant which took place in Gambill's saloon, assigning as ground of objection, because not a part of the res gestae, because illegal, irrelevant, and immaterial, and because remote and disconnected with the encounter which resulted in the killing. There seems to have been no objection as to the testimony of witness Wesley Reeder, who was examined as a witness for the state prior to the introduction of the witness John Middleton, the said witness Reeder having testified to substantially the same facts as did the witness John Middleton. Neither was there objection interposed as to the testimony along the same line of witnesses Josh Middleton, John Robertson, Henderson Gipson, and Jack Sherrod. All of these witnesses without seeming material conflict testified to the detailed facts relating to the commencement or the beginning of the difficulty out of which the homicide grew. The testimony is practically without conflict that the defendant and deceased mutually and willingly entered into a fight in Gambill's bar, and that the fight continued until they were forcibly separated; that deceased left the scene of the difficulty by going out of the back door of the saloon and was almost immediately followed by the defendant; and that the fatal shot was fired, as shown by the testimony, in one to three minutes thereafter. The defendant admits that he fired the shot which killed deceased, and the evidence is without conflict that the bullet entered the forehead of the deceased, striking him right in the center between the eyebrows. Under these circumstances, it can be clearly seen that the evidence of John Middleton was competent, and the ruling of the court in admitting it free from error. It was competent to show all that transpired at the time of the killing, and which occurred prior thereto leading up to and explanatory of the tragedy. Way v. State, 155 Ala. 60, 46 So. 273. Acts or declarations are admissible as part of the res gestae if they are substantially contemporaneous with the main fact under consideration and so closely connected with it as to illustrate its character. Johnson v. State, 94 Ala. 41, 10 So. 667; Fonville v. State, 91 Ala. 42, 8 So. 688. In the case of Stitt v. State. 91 Ala. 10, 8 So. 669, 24 Am.St.Rep. 853, it was held that, where it appears that defendant was knocked down by the deceased, and that defe...