Odeneal v. State

• Decision Date: 07 June 1913
• Parties: ODENEAL v. STATE.
• Court: Tennessee Supreme Court

157 S.W. 419

128 Tenn. 60

ODENEAL v. STATE.

Supreme Court of Tennessee.

June 7, 1913

Error to Circuit Court, Haywood County; Thos. E. Harwood, Judge.

George Odeneal was convicted of voluntary manslaughter, and he brings error. Affirmed.

Kinney & Wills, of Brownsville, for plaintiff in error.

Assistant Attorney General Faw, for the State.

NEIL C.J.

The plaintiff in error was indicted in the circuit court of Haywood county for the murder of one Haywood Pender, was convicted of voluntary manslaughter, and sentenced to a term of seven years' confinement in the state penitentiary. On his motion for a new trial he introduced witnesses to show that he had never been properly arraigned, although the entry on the minutes showed that he had pleaded not guilty and had gone to the jury on that issue. Without going into the question as to how far the entry on the minutes may be contradicted in this manner, it suffices to say that the bill of exceptions fails to show that it contains all of the evidence offered on the motion for new trial. Eatherly v State, 118 Tenn. 371, 101 S.W. 187; Ransom v State, 116 Tenn. 355, 96 S.W. 953.

It is next assigned as error that the trial judge committed error in his charge upon the subject of reasonable doubt. His honor instructed the jury that the plaintiff in error was presumed to be innocent of each and all the offenses embraced in the indictment, and that this presumption remained a witness in his favor until his guilt should be established to the satisfaction of the jury beyond a reasonable doubt. He then said to the jury that the state did not insist upon a conviction of murder in the first degree, and proceeded to define each subsequent degree, that is, murder in the second degree, and the two grades of manslaughter, and, as to each, instructed the jury that before they could convict the defendant of any one of these grades they must be satisfied of his guilt beyond a reasonable doubt. His honor further instructed the jury upon the subject of reasonable doubt as follows:

"A reasonable doubt is not a mere captious or imaginary doubt, but is a doubt that arises naturally in your minds after a fair and impartial consideration of all the evidence in the case, and leaves your minds in that condition that you do not feel an abiding conviction to a moral certainty of the truth of the charge. The law, in order to convict, does not require the guilt of the defendant to be established to an absolute certainty; but it does require his guilt to be established by the proof to your satisfaction to a moral certainty, and that is a certainty that convinces and directs your understanding and satisfies your reason and judgment of the truth of the charge. If, therefore, the proof in this case convinces and directs your understanding and satisfies your reason and judgment of the defendant's guilt, you will convict him; if it does not, you will acquit him."

That portion of the above instruction which is objected to we have indicated by italics. Taking the part objected to in connection with the preceding sentence, we are of the opinion that there was no error in the instruction given.

The next assignment of error is based upon an excerpt from the judge's charge upon the subject of an alibi which was sought to be proven by the plaintiff in error. We shall quote the whole of the charge upon this subject, indicating by italics that part objected to, viz.:

"Under his plea of not guilty the defendant also insists upon the defense of an alibi; that is, that he, the defendant, was not out at the place where the shot was fired and the deceased shot, at the time he was shot; but that he, defendant, was in the house, and did not know of the shooting until he heard the pistol fire, and then only by its report. The defense of an alibi is a perfect defense, when clearly and fully established by the proof; but, like every other fact in the case, it is left to you to say whether it has or has not been established. You should look [to] and examine the proof as to the alibi with strictness and caution, to avoid being misled by it, as it is easily concocted, where there is a design to perpetrate a fraud on the state, or even where there is no such design, it is such an easy matter for witnesses to honestly mistake the day or the time to which they refer. But you will consider the proof of an alibi in connection with the other proof in the case, by the aid of your own experience and observation, and weigh it fairly and impartially, with an honest effort to reach the truth, and, if so weighing and considering all the facts and circumstances in the case, you have and entertain a reasonable doubt as to whether the defendant was out in front of the hall or house when the shooting took place, or was at that time in the house away from the place of the shooting, then you should acquit the defendant; but if you have no reasonable doubt but that he was out there when the shooting took place and is guilty you should convict him of each [misprint for 'such one'] of the three grades of homicide as you find him guilty."

The instruction, taken all together, was correct. Thompson v State, 5 Humph. (24 Tenn.) 138, 139; Chappel v. State, 7 Cold. (47 Tenn.) 92; Jefferson v. State, 3 Shan. 329, 333; Wiley v. State, 5 Baxt. (64 Tenn.) 662; Legere v. State, 111 Tenn. 368, 377, 77 S.W. 1059, 102 Am. St. Rep. 781. We do not approve the words "when clearly and fully established by the proof," as these words seem to indicate the necessity of proving the point beyond a reasonable doubt. Lawless v. State, 4 Lea (72 Tenn.) 173, 181, 182; Owen v. State, 89 Tenn. 698, 16 S.W. 114. But these words are sufficiently qualified, by what is said in the subsequent part of this instruction on the subject of reasonable doubt, to prevent the jury from being misled thereby. The learned trial judge evidently used these words under the suggestion made in Jefferson v. State, supra, wherein it was said, after referring to the caution with which the jury should scrutinize the evidence upon the subject of alibi: "Of course, this caution...