Quinn v. State

• Decision Date: 14 May 1957
• Docket Number: 5 Div. 492
• Citation: 39 Ala.App. 107,95 So.2d 273
• Parties: Jimmie QUINN, Jr. v. STATE.
• Court: Alabama Court of Appeals

Page 273

95 So.2d 273

39 Ala.App. 107

Jimmie QUINN, Jr. v. STATE.

5 Div. 492.

Court of Appeals of Alabama.

May 14, 1957.

Harry D. Raymon and Oliver P. Head, Tuskegee, for appellant.

John Patterson, Atty. Gen., Bernard F. Sykes and Geo. Young, Asst. Attys. Gen., for the State.

CATES, Judge.

This is an appeal from a jury verdict and judgment of conviction predicated upon an indictment laid in two counts, viz., first that Jimmie Quinn, Jr., burglarized the Tuskegee Institute Post Office (Code 1940, Title 14, § 86); and, second, that he feloniously took and carried away therefrom $113.97, the personal property of the United States of America. The verdict was general and the court sentenced the defendant to five years' imprisonment.

From the State's evidence, the jury could have inferred that on the night of May 5, 1955, the defendant was seen in the lobby of the Institute Post Office in a pay phone booth. A short time thereafter, the night watchman discovered that the building had been broken into. The next day in the presence of the sheriff and Messrs. King, Hodnett, Gore and Rowell, the defendant gave a confession to Mr. Abram Goode, a federal post office inspector, which confession defendant subscribed to with the sheriff of Macon County, Mr. Rowell, and Mr. Goode as the attesting witnesses. The proper predicate was laid for its introduction, and there is nothing other than the defendant's testimony to show that any inducement was made for the statement other than the desire of the defendant at that time to tell the truth and placate his conscience.

Defendant's confession reads:

'Dated May 6th, 1955. I am 18 years of age and live with my parents near Tuskegee Institute, Alabama. I was 18 on February 11, 1955. About midnight on May 5, 1955 I broke into the post office at Tuskegee Institute, Alabama. I took some money from a drawer which I pried open with a jack handle. I do not know how much money I took, but I guess it was about $100.00. I entered the post office from the post office lobby by breaking a glass from a window between the work room of the post office and the lobby. After I removed the money from the drawer I went back through the window to the lobby and entered a telephone booth. I was trying to make a telephone call when the night watchman came through the lobby. I talked with him a few minutes and shortly thereafter I left. Prior to the time I broke the window to the work room I had tried to open the back door of the post office, by cutting a hole in the screen and prying the latch from the door. I had no help in entering the post office and on--no one was involved in the matter but me. I threw the tire tool out of the car south of Tuskegee, Alabama. After I left the post office I went to Club 29 between Tuskegee and Union Springs and spent all of the money except $10.00. I bought about eight pints of liquor and about six chicken suppers. The liquor was $4.00 a pint and the suppers cost about $1.30 each. I also bought some gin and beer for people who were attending a dance and I also paid $2.00 to get into the club. I swear that I spent all of the money I took from the post office except $10.00 last night and I paid $3.00 on a bill I owed this morning. That left $7.00 which I turned over to officers to be returned to the post office at Tuskegee Institute. I have read the above statement and it is true to the best of my knowledge. I have made this statement of my own free will without any promises or threats having been made to me and I know that it may be used against me. Signed Jimmie Quinn, Jr.'

The defendant took the stand on his own behalf and denied being anywhere near the post office either before or after having been in the telephone booth. He stated that the confession was not true; that he had signed it upon the threat of the sheriff (made outside the presence of any other witnesses) that he was going to beat up the defendant; and also because the sheriff made the further inducement that he would assist the defendant in getting out in a short period of time. Belief of this cudgel and carrot conduct ascribed to the sheriff, together with all of the other circumstances attending the making of the confession after its admission, were matters to be weighed by the jury, and do not present any reviewable question. The defendant also offered proof in support of a plea of insanity. This was also a jury question.

The following instructions submitted by the defendant were refused by the trial judge:

'Charge no. 11 The Court charges the jury that if they are not satisfied beyond a reasonable doubt, to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the guilt of the Defendant, then they should find him not guilty; and it is not necessary, to raise a reasonable doubt, and that the jury should find from all the evidence a probability of Defendant's innocence, but such a doubt may arise, even when there is no probability of his innocence in the testimony, and, if the jury have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to acquit him.

'Charge no. 12 The Court charges the jury that if there is from the evidence a reasonable probability of Defendant's innocence, the jury should acquit the Defendant.'

As to Charge 11, at one time cases such as Bufford v. State, 23 Ala.App. 521, 128 So. 126, and Olden v. State, 176 Ala. 6, 58 So. 307, and others would have supported the requested charge as a correct statement of the law and its refusal as error. However, in accordance with the recent trend towards simplification of jury charges, this particular instruction has been disapproved by this court in Krasner v. State, 32 Ala.App. 420, 26 So.2d 519, and Mason v. State, 37 Ala.App. 122, 64 So.2d 606, and by the Supreme Court in Odom v. State, 253 Ala. 571, 46 So.2d 1.

The trial judge concluded his general charge:

'If, on the other hand, after considering all the testimony in the case, you have a reasonable doubt of this defendant's guilt of any offense embraced in this indictment, then you should acquit him, and in that event the form of your verdict would be: We, the jury, find the defendant not guilty.' (Italics supplied.)

Charge 12 in this case appears as Charge 23 in Bankhead v. State, 33 Ala.App. 269, 32 So.2d 814, as Charge 26 in Carroll v. State, 36 Ala.App. 59, 52 So.2d 171, seemingly as Charge 51 in Coleman v. State, 37 Ala.App. 406, 69 So.2d 481, and Charge 5 in Nix v. State, 33 Ala.App. 603, 36 So.2d 452, is like Charge 12 here. See also May v. State, 35 Ala.App. 228, 45 So.2d 695. What was said there and in Russo v. State, 236 Ala. 155, 181 So. 502, applies here i. e., since the substance, yea more, of the request was covered by the general charge, no error lies, Code 1940, Title 7, § 273.

The defendant further states that the refusal of the above charges makes his argument as to the trial court's error all the more cogent because of his having interposed a plea of not guilty by reason of insanity, Code 1940, Title 15, § 422. The State refutes this contention upon the technical ground that the minute entry shows merely that issue was joined upon the indictment and a plea of not guilty. To support this, the State calls our attention to a statement in Pate v. State, 19 Ala.App. 243, 96 So. 649, that the failure of the judgment entry to show a plea of not guilty by reason of insanity is conclusive on appeal. The transcript of the testimony, including the judge's oral charge, abundantly supports the defendant's contention that a plea of not guilty by reason of insanity was properly made during the course of the trial and was one of the issues presented. We believe that whatever validity there might be in the Pate case has been essentially modified by the Supreme Court's doctrine in Neal v. State, 257 Ala. 496, 59 So.2d 797.

As to the merits of the defendant's contention, we hold that the trial court was not in error as to the insanity aspect in refusing Charges 11 and 12, since the court's oral charge on the subject of insanity appears to be adequate in the light of the law and the evidence in the case. Here the court charged the jury as follows:

'Now, gentlemen, as the court has already told you, in addition to pleading not guilty, the defendant has filed this special statutory plea of not guilty by reason of insanity. It is necessary then, gentlemen, for the court to charge you on the law regarding the plea of not guilty by reason of insanity in order that you may approach it with some degree of knowledge of what we mean by a plea of not guilty by reason of insanity. The defense of insanity, or rather not guilty by reason of insanity, as pleaded by this defendant, as the court has already told you, must be specially pleaded, as it is pleaded in this case, because the defendant's other plea of not guilty, under our law, does not put in issue the question of the irresponsibility of the defendant by reason of his alleged insanity, and without this special plea, the defendant could not offer evidence of his insanity. The purpose of the statute in Alabama has been said to be to separate as far as possible the two offenses--the two defenses, not guilty, and not guilty by reason of insanity, and to have the proof directed to each of these defenses and the verdict to respond to each of these defenses. Your province then, gentlemen of the jury, in this case is to determine the truth of the charge against this defendant as embraced in this indictment. That is your first duty. And then to determine the truth of the plea of not guilty by reason of insanity which the defendant has filed. In the first place, then, gentlemen of the jury, you will determine from the evidence whether this defendant, Jimmie Quinn, Jr., has committed the acts charged against him in this indictment. That is your first inquiry. And if, under the rules which the court is giving you now, and will give you later on, you are convinced...