Pope v. State

• Decision Date: 29 June 1911
• Citation: 57 So. 245,174 Ala. 63
• Parties: POPE v. STATE.
• Court: Alabama Supreme Court

57 So. 245

174 Ala. 63

POPE v. STATE.

Supreme Court of Alabama

June 29, 1911

On Rehearing, December 21, 1911.

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Ervin Pope was convicted of murder, and he appeals.Reversed and remanded.

For former report of this case, see168 Ala. 33, 53 So. 292.

AndersonMayfield, and Sayre, JJ., dissenting.

The exceptions to evidence are sufficiently set forth in the opinion of the court.The following are the charges refused to plaintiff:

"(1)The court charges the jury that, no matter how strong the circumstances may be, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty.

"(2)The court charges the jury that, no matter how strong the circumstances may be, if they can be reconciled with the theory that some other person may have done the act, they cannot find the defendant guilty.

"(3)The court charges the jury that, if you entertain a reasonable doubt that the shoes offered in evidence were worn by Ervin Pope the night of the homicide, and if you consider this a necessary link in the state's chain of evidence, you cannot find the defendant guilty.

"(4)The court charges the jury that it is the duty of each of you to consider the testimony in this case with the utmost care, and that when it is necessary, in order to establish the theory of the defendant's guilt, to draw inference from the evidence as to facts not directly proven, that you must not draw that inference and convict this defendant, unless you would draw the same inference and act on it in matters of the greatest concern and importance to your own private affairs.

"(5) I charge you, gentlemen of the jury, that if you believe from the evidence that the thief who robbed McClurkin started when the light was struck, and had time to get past Body's house before McClurkin could have overtaken him, that the defendant is entitled to have you consider this circumstance as showing the improbability of the state's theory that the thief was Ervin Pope, who was overtaken at Body's house.

"(6)The court charges the jury that, in considering any statement made by the defendant at the time of and since his arrest, and claimed by the prosecution to be inconsistent, improbable, and as casting suspicion upon defendant, it is proper that they should take into consideration the weakness of human nature and weakness of the defendant, if such be shown, the excitement and fear operating on him at the time, if such be shown, together with all the circumstances in which he was placed, and determining from the whole evidence the weight or value as evidence you will give to such statement.

"(7)The court charges the jury that in arriving at their verdict in this casethey must consider the evidence as fairly and impartially as they would if this were the case of a negro accused of killing a negro, a white man accused of killing a white man, or a white man accused of killing a negro.

"(8)The court charges the jury that there is no evidence in the case that the defendant had not heard that McClurkin had been killed at the time of his arrest, or at the time he was taken into custody at his house on the morning after the homicide.

"(9)The court charges the jury that the evidence on the part of the state against the defendant is circumstantial, and before you can convict him on such testimony you must believe from the evidence beyond all reasonable doubt, and to a moral certainty, that John Body was not guilty of the killing.

"(10)The court charges the jury that if they would not be willing to act upon the evidence in this case, if it was in relation to matters of the most solemn importance to their own interests, then they must find the defendant not guilty.

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

"(12)The court charges the jury that this case rests entirely on circumstantial evidence; that it is their duty to carefully and seriously consider every material point in the state's theory; that if any one of them entertains a reasonable doubt as to the existence of any link in the state's chain of evidence, and that link is a necessary one to the remainder of the state's theory, you cannot find the defendant guilty.

"(13)The court charges the jury that they have a right, in considering the evidence, to take into consideration the traits, characteristics, and peculiarities of the white and negro race; but, outside of that, they must not let their verdict be influenced in the slightest degree by the fact that the deceased was a white man and the accused a negro.

"(14)The court charges the jury that it is their duty to contrast the manner and demeanor of the witnesses for Pope with the manner and demeanor of the state's witnesses; and you must apply this test, also, to the testimony of Pope as a witness for himself.

"(15) I charge you that it is just as much the duty of a jury to acquit a negro of the charge of killing a white man, if you do not believe from all the evidence that he is guilty beyond a reasonable doubt, as it would be the duty of a jury to acquit a white man of the charge of killing a negro, if the jury did not believe beyond a reasonable doubt that he was guilty.

"(16)The court charges the jury that, if they believe all evidence in the case, they should find the defendant not guilty."

Niel P. Sterne, for appellant.

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

SOMERVILLE J.

This is the second appeal in this case, the first being reported in Pope v. State,168 Ala. 33, 53 So. 292.On the first trial, as on the second, appellant was convicted of murder in the first degree, and sentenced to death.The record presents for review numerous rulings of the trial court, the most important of which are discussed at length in the brief of counsel for appellant.We consider these in the order in which they are presented.

1.The trial court properly refused to give for the defendant the general affirmative charge.We cannot undertake to review the evidence at length in this opinion; but we have examined it with painstaking care, and are satisfied that, taken as a whole, it fairly and reasonably permits of inferences favorable to the guilt of the defendant.Toles v. State,54 So. 511;Turner v. State,97 Ala. 57, 12 So. 54.

The insistence of appellant's counsel in this behalf, forceful and earnest as it is, was for the consideration of the jury, and we cannot usurp their functions by here passing upon the mere weight of the evidence they had before them.

2.The juror Stovall, having been examined by the court, was pronounced competent.On cross-examination by defendant's counsel, he admitted that from what he had heard of the casehe had "drawed an opinion"; but he repeatedly stated that he thought it would have no effect on his verdict, that he knew he would be governed by the evidence.He said further: "I expect it would be somewhat different if I had never heard of it.It would be according to the evidence given in.I can't say how it would be."And, finally, as to whether he was absolutely certain that what he had heard might not unconsciously have some influence on him, he said, "I couldn't be for sure."

Under the principles fully discussed and laid down in Long v. State,86 Ala. 36, 40, 5 So. 443, this juror was undoubtedly competent.It seems certain from his whole examination that he had no fixed opinion of defendant's guilt which would bias his verdict.It is not necessary to a juror's competency that he shall be able to say that he feels absolutely certain that previous impressions will not unconsciously influence his verdict.This is a purely pyschological speculation which must be deemed foreign to the purposes of the law, which guarantees only approximate and not absolute impartiality in jurors.As said by Chief Justice Marshall on the trial of Aaron Burr: "Light impressions, which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him"--cited and approved in Long v. State,86 Ala. 42, 5 So. 447.

In Long v. State, the rule on appeal is thus stated: "The reviewing court, therefore, should exercise caution, and the finding of the trial court should not be set aside, unless it affirmatively appears that, on the answers of the juror taken as a whole, he entertained a fixed opinion which would bias his verdict."

The ruling in the case of King v. State,89 Ala. 146, 7 So. 750, cited and relied on byappellant, is by no means in point, as will be seen by an examination of the challenged juror's answers in the report of that case.While, on the other hand, our ruling here is in accord with the ruling in Hammil v. State,90 Ala. 577, 8 So. 380, on substantially the same conditions.

3.In opening, the state's case was presented to the jury by the solicitor by merely reading the indictment.Supplementing his formal plea of not guilty, defendant's counse...