Phillips v. State

• Decision Date: 19 May 1914
• Docket Number: 239
• Citation: 11 Ala.App. 15,65 So. 444
• Parties: PHILLIPS v. STATE.
• Court: Alabama Court of Appeals

65 So. 444

11 Ala.App. 15

PHILLIPS v. STATE.

No. 239

Court of Appeals of Alabama

May 19, 1914

Appeal from Circuit Court, Houston County: H.A. Pearce, Judge.

William Phillips was convicted of manslaughter in the first degree and he appeals. Reversed and remanded.

The following charges were refused to defendant:

(2) It is the duty of each juror to decide the issue for himself, and, if there is any juror who has a reasonable doubt of the guilt of defendant, it is his duty to stand by his convictions, and he should not yield simply because every other juror may disagree with him.

(4) A probability of defendant's innocence is at least equivalent to a reasonable doubt of his guilt.

(21) The court charges the jury that if, after considering all the evidence in the case, a single juror has a reasonable doubt of defendant's guilt, growing out of any part of the evidence, then they must acquit defendant.

(40) The court charges you that if any individual juror is not convinced of defendant's guilt beyond a reasonable doubt and to a moral certainty, you cannot convict.

(42) Each juror is required to be satisfied of the guilt of defendant beyond a reasonable doubt before they are authorized to find a verdict of guilty, and each juror must be separately and segregately so satisfied to support a conviction.

(46) If any member of the jury has a reasonable doubt of the guilt of defendant growing out of any part of the testimony on consideration of all the testimony, the jury cannot convict.

(10) The court charges the jury that, unless the evidence in this case has produced a conviction of the truth of the charge with that degree of certainty on which the mind reposes with satisfaction, they must acquit defendant.

(26) If there is a reasonable supposition of defendant's innocence, you must acquit him.

(25) I charge you to acquit defendant, unless the evidence excludes every reasonable supposition but that of his guilt.

(24) Unless all the evidence in this case excludes every reasonable supposition but that of defendant's guilt they must acquit.

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

(48) Same as 47.

Espy & Farmer, of Dothan, for appellant.

R.C. Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

THOMAS, J.

There was but one count in the indictment, and it charged, in the language prescribed by the code form (form 72 [Code 1907, § 7161]), manslaughter in the first degree. The verdict returned by the jury read as follows:

"We the jury find the defendant guilty as charged in the indictment and fix his punishment at one year in the penitentiary."

The court rendered judgment of guilt upon this verdict, but sentenced the defendant to 12 months' hard labor for the county, instead of to the penitentiary for one year as named in the verdict. There is no question raised but what, if the verdict of guilt is good, the sentence of the court was the correct one (so held to be by the latest decisions of this and of the Supreme Court. Robinson v. State, 6 Ala.App. 13, 60 So. 558; Ex parte Robinson [Sup.] 63 So 177); but the point made is that the verdict was a nullity and could authorize no judgment at all and consequently no sentence whatever, because it failed, it is insisted, to fix the degree of the homicide of which defendant was found guilty by the jury, and, as a result, that it was so indefinite and uncertain that the court could not know whether to pronounce judgment and sentence for manslaughter in the first degree or for manslaughter in the second degree. Practically the same point here raised on the verdict has already been decided by our Supreme Court adversely to the contention of appellant, and the reasoning of the opinions so deciding is such as to answer successfully the particular insistence here made, without the necessity of a discussion on our part to show that the verdict was one finding defendant guilty of manslaughter in the first degree. Du Bois v. State, 50 Ala. 139; Watkins v. State, 133 Ala. 94, 32 So. 627; Weaver v. State, 1 Ala.App. 48, 55 So. 956. See, also, in connection Code, § 7092. The cases cited distinguish, we think, the present case from the cases cited by appellant, to wit, Cobia v. State, 16 Ala. 781; Robertson v. State, 42 Ala. 510; Johnson v. State, 17 Ala. 627; Turner v. State, 40 Ala. 21.

The father of deceased, as a witness for the state, testified as to the only wound inflicted upon deceased by defendant, which was a knife wound, from which deceased admittedly died the next day. After stating that he, the witness, could not tell how deep the wound was, but that it was through the fat and covering of the intestines, and that some of the flesh was protruding from the wound on the next day, he, the witness, was then asked by the state, over the objection and exception of defendant, "Did the cut part of it off?" to which the witness replied, over similar objection and exception by defendant, "Yes, sir." The question is unintelligible, and we are unable to say from it what fact it was intended to bring out, nor from either it or the monosyllabic answer are we able to say what fact it did bring out. But since the judgment of the lower court must be reversed for other reasons, we will state that, if the object of the question was, as defendant contends, to elicit the fact that either the witness or some one else cut off some of this protruding flesh, it was improper. Such fact formed no part of the res gestae, happened after the difficulty, was res inter alios acta, and entirely immaterial to any issue in the case.

The refusal of the court to permit the witness Granger to testify, in behalf of defendant, as to the condition of the two roads, and that the one along which defendant was traveling at the time of the fatal difficulty, which was a settlement road, and which led by the mill at which deceased was at work, was a harder and better road, more attractive by reason of the white settlements along it, and more generally traveled by the public, and not much longer, than the other road, which was a public road that defendant might have taken in going to his contemplated destination, was error without injury, for the reason that several witnesses of defendant were allowed, without objection by the state, to state the same facts, which were never ruled out, but which remained in evidence to be considered by the jury, and which were never in any wise disputed or in the least contradicted by any evidence introduced by the state. The result is that these facts, proved, without objection, by several of defendant's witnesses, were in effect admitted by the state, and defendant could not, consequently, sustain any injury by the refusal of the court to permit him to prove the same facts by other witnesses.

The court properly sustained the state's objection to defendant's question propounded to the witness Granger who was the father of deceased, whereby it was sought to show that witness had stated, in the presence of certain named persons, that he went to the house of deceased early on the morning of the difficulty, and urged deceased not to have any difficulty with defendant. What a witness says or does is immaterial and irrelevant, unless it tends to impeach him as to some statement he has made or testified to on the trial. Appellant does not contend that this is the case here, but insists only that, if the witness said to others that he went to see deceased on the morning of the difficulty and urged him not to have a difficulty with defendant, this would tend to impeach the dying declaration of deceased, wherein deceased completely exonerated himself from all fault. If the defendant had offered to prove that the witness had actually been to see deceased on the morning of the difficulty, and urged him to have no difficulty with deceased, rather than offering to prove, as defendant did, merely that witness said he did, even this would have been immaterial. The deceased may be impeached by what he himself said and did, but not by what somebody else said and did. What deceased said and did to the knowledge of the witness, indicating that deceased intended to have a difficulty with defendant, would be material as tending to impeach the statement of deceased, but what the witness said and did would not.

It was sufficiently shown that the witness Whistnant was a resident of the state of Florida to furnish an adequate predicate for the introduction in evidence of his testimony given on the former trial of the case. Jacobi v. State, 133 Ala. 1, 32 So. 158; Pope v. State (Sup.) 63 So. 71. Appellant's counsel, in making a contrary insistence, no doubt overlooked the testimony of the witness Granger on page 3 of the record, which clearly and positively shows that Whistnant lived in Florida, and had been living there, to the knowledge of the witness, for two years before and at the time of the trial. Besides, it seems that the testimony on pages 7 and 8 of the record was sufficient to show such residence. Authorities last cited.

Likewise we are of opinion, upon the same authorities as cited, that a sufficient predicate was laid by the state for the introduction of the testimony of Ola Granger, given on a former trial. It appeared from the testimony of her brother-in-law, Curtis Norton (pages 12, 13, 34, and 35 of the record), that she was at the time of the present trial a...