Pinkerton v. State, 6 Div. 326.
| Citation | 22 So.2d 113,246 Ala. 540 |
| Decision Date | 29 March 1945 |
| Docket Number | 6 Div. 326. |
| Parties | PINKERTON v. STATE. |
| Court | Supreme Court of Alabama |
Pennington & Tweedy, of Jasper, for petitioner.
Wm. N. McQueen, Acting Atty. Gen., and Chas. M Cooper, Asst. Atty. Gen., opposed.
Excerpts from the oral charge to which defendant reserved exceptions and which were considered by the Court of Appeals in the opinion here under review, are as follows:
'After considering all this evidence from the defendant and the state's witnesses, if you and each and all of you do believe this defendant had possession of the liquor out there that morning, you should return a verdict of guilty and, in that event, the form of your verdict should be, 'We, the jury find the defendant guilty of violating the prohibition law as charged in the indictment and assess a fine of not less than $50.00 and not more than $500.00' and you are to fix the amount of the fine.'
'Whatever I may have said with reference to a reasonable doubt in my oral charge, heretofore, I withdraw that from your consideration and state that you may be the judge of what constitutes a reasonable doubt, and what it takes to make a reasonable doubt.'
.
Petitioner was convicted of a violation of the prohibition law, an offense punishable, in addition to a fine, by imprisonment or hard labor for the county. Sec. 99, Title 29, Code 1940. And under the provisions of Sec. 336, Title 15, Code 1940, in an offense so punishable the jury 'shall not be required to impose a fine; but, if in their judgment, the defendant should only be punished in some other mode, may, in such case, only find him guilty and leave the imposition of the punishment to the court.'
The oral charge of the court to which exception was reserved can only be reasonably interpreted as instructing the jury that if they found the defendant guilty, they should assess a fine. Indeed, in the oral charge the court gives them the form of the verdict relating to the fine, and instructs the jury they are to fix the amount thereof. We are unable to see that the charge here in question, for all practical purposes is to be differentiated from the language of the court to which exception was reserved in Bibb v. State, 84 Ala. 13, 4 So. 275, 276. In the Bibb case it was pointed out that the effect of such a charge 'was to require the jury to assess a fine on a conviction, and to take from them the discretion conferred by the statute.' As we interpret it, that is exactly what this charge did, and the exception thereto was well taken. In the Bibb case, supra, the judgment of reversal was rested solely upon this error of the court.
The opinion of the Court of Appeals here under review cites Lashley v. State, 25 Ala.App. 115, 141 So. 717 (not here reviewed), as supporting the conclusion reached in the instant case. The opinion in the Lashley case gives no indication that the case of Bibb v. State, supra, was called to the attention of the court, and it evidently escaped the notice of the writer of the opinion, particularly in view of the fact that the judgment of conviction was reversed upon other grounds. We are of the opinion that this action of the court, under Bibb v. State, supra, was error to reverse. We may add that Sec. 336, Title 15, Code 1940, supra, has been re-enacted many times since the rendition of the Bibb case without any substantial change.
Of course, as stated by counsel for petitioner, the definition of a reasonable doubt is a matter for the court. But the opinion of the Court of Appeals...
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