Prater v. State

• Decision Date: 25 July 1895
• Parties: PRATER v. STATE.
• Court: Alabama Supreme Court

18 So. 238

107 Ala. 26

PRATER v. STATE.

Supreme Court of Alabama

July 25, 1895

Appeal from circuit court, Lawrence county; H. C. Speake, Judge.

Calvin Prater was convicted of arson, and appeals. Reversed.

A demurrer to a motion for a change of venue was sustained, and the defendant duly excepted. The defendant moved to quash the venire, on the same ground, and duly excepted to the court's overruling his motion The bill of exceptions recites: "During the impaneling of the jury in this cause, the name of T. S. Craig was taken out of the hat from which the names of the jurors were being drawn; and the said juror, T. S. Craig being in the jury room, on a jury of a capital case, said capital case having been the day before submitted to the jury; the name of said juror having been served upon the defendant, and said juror having been legally summoned, as shown by the return of the sheriff of said Lawrence county,-the court refused to have the said juror, T S. Craig, called and brought into court. And thereupon the defendant duly excepted to the ruling of the court. Before the jury in this case was completed, the jury of which said Craig was a member came into the court room, and the name of said Craig was again placed in the hat, and drawn therefrom and he was accepted, both by the state and defendant, and was one of the jurors who sat upon the trial of defendant in this case." The rulings of the court upon the evidence are sufficiently shown in the opinion. There was evidence introduced on the part of the state tending to show that the defendant had set fire to the dwelling house of Howard Irwin as charged in the indictment. The state introduced as a witness one Ephraim Prewitt, who testified, among other things, that the defendant and others had planned to burn the house of Howard Irwin, and that, after the house was burned the defendant told him, Ephraim Prewitt, that he had set fire to the house. The defendant introduced evidence tending to prove an alibi. He himself testified that he knew nothing about the burning of Irwin's house, and was not at the house on the night when it was burned. The defendant introduced evidence tending to impeach the testimony of the witness Ephraim Prewitt, and also introduced witnesses who testified that they knew the general reputation of the witness Ephraim Prewitt for truth and veracity in the community in which he lived, and that from such reputation they would not believe him on oath, and that his character was bad. Upon the introduction of all the evidence, the court, at the request of the state, gave to the jury the following written charges: (1) "I charge you, gentlemen of the jury, that, when a defendant attempts to prove an alibi, and burden of proof is upon him to prove it successfully." (2) "I charge you, gentlemen of the jury, that if, after considering all the evidence, you have a fixed conviction of the truth of the charge, you are satisfied beyond a reasonable doubt, and it is your duty to convict defendant." (3) "I charge you, gentlemen of the jury, as a matter of law, that, in considering this case you are not to go beyond the evidence to hunt up doubts, nor must you entertain such doubts as are merely imaginary or conjectual. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of doubts interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say that you have a fixed conviction of the truth of the charge, you are satisfied beyond a reasonable doubt." (4) "I charge you, gentlemen of the jury, if you believe from all the evidence, beyond a reasonable doubt, that the defendant is guilty, though you also believe it possible that he is not guilty, you must convict him." (5) "I charge you, gentlemen of the jury, that the doubt must be actual and substantial, not mere possible, doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges, which were requested by him: (1) "The confession should be taken as a whole. The time and circumstances of its making, its harmony or inconsistency with other evidence, and the motive which may have operated on the party in making it should all be considered by the jury. Before a confession is received as evidence, it must be shown that...