Ragland v. State, 5 Div. 304.

• Citation: 238 Ala. 587,192 So. 498
• Decision Date: 14 December 1939
• Docket Number: 5 Div. 304.
• Parties: RAGLAND v. STATE.
• Court: Supreme Court of Alabama

192 So. 498

238 Ala. 587

RAGLAND v. STATE.

5 Div. 304.

Supreme Court of Alabama

December 14, 1939

Appeal from Circuit Court, Lee County; Albert Hooton, Judge.

Judge Ragland was convicted of murder in the first degree, and he appeals.

Affirmed.

J. Arch McKee, of Opelika, and Roberts H. Brown, of Auburn, for appellant.

Thos S. Lawson, Atty. Gen., for the State.

BOULDIN Justice.

Appellant Judge Ragland, was indicted for the murder of Robert Capps by shooting him with a pistol; was convicted of murder in the first degree, and his punishment fixed at death.

The admission of certain statements of the deceased to the witness, C. R. Sellers, as dying declarations, is questioned for want of sufficient predicate.

Evidence for the state was to the effect that the deceased was found in his sleeping quarters in the rear of his store building in Opelika early Sunday morning, lying on the floor, suffering from a gunshot wound entering just above the collar-bone to the right; that the bullet had struck the spinal cord, causing paralysis of all the lower parts of the body; that he was very weak; that he became unconscious within a few hours, and died within forty-eight hours.

Said the witness, Sellers: "He stated he was going to die."

The dying declarations then admitted were: "He said he was shot with a pistol." "He said Emma Ragland's old boy shot him, the one that had just got back from the pen a little while back."

Evidence by way of predicate for the admission of dying declarations is addressed to the court.

It should reasonably satisfy the court that the declarations were made under a "sense of impending death." This does not necessarily mean a sense of immediate dissolution, a present dying condition.

If there be a full conviction that he is facing death as a result of his wounds, the sense of impending death, deemed in the law as equivalent to the sanction of an oath, is present. He may live for days or weeks. He may have no definite idea how soon he will pass on.

In considering the predicate the court may look to the statements of the deceased, the nature of his wounds, his weakness, all the circumstances tending to show his state of mind.

We find no error in the ruling of the court on this question. Davidson v. State, 211 Ala. 471, 100 So. 641; Carmichael v. State, 197 Ala. 185, 72 So. 405; Gibson v. State, 193 Ala. 12, 69 So. 533; Logan v. State, 149 Ala. 11, 43 So. 10; 11 Ala.Dig., Homicide, + 203(3), pp. 464, 465.

Evidence that defendant was Emma Ragland's son, and had recently been in the penitentiary, was admissible by way of identification of the party meant in the dying declaration. The testimony was properly limited to that inquiry.

After the defendant had become a witness in his own behalf, evidence that he was in the penitentiary on a conviction for larceny, an offense involving moral turpitude was properly admitted as going to his credibility. Code, §§ 7722, 7723.

The defendant offered evidence of an alibi; evidence tending to show he was at home at the time deceased was shot. The State's evidence tended to show the shooting was near 10:30, Saturday night.

In his oral charge the court instructed the jury: "The burden is on the defendant to establish his alibi to your reasonable satisfaction." At the conclusion of the oral charge defendant duly excepted to this portion of the charge. Thereupon the following transpired:

"The Court: Gentlemen of the jury, I will withdraw that statement, because evidence of alibi is to be considered together with all the other evidence in the case, and if it generates a reasonable doubt as to his guilt it is your duty to acquit him. That is what I intended to say.

"Mr. Glenn: The burden is on him?

"The Court: The burden is on him, but the burden never shifts from the State. You have the exception.

"Mr. Glenn: Yes, sir."

It is insisted that the last announcement of the court, in response to the question by Mr. Glenn, defendant's counsel, again misplaced the burden of proof, and was reversible error.

"The burden is on him, but the burden never shifts from the State," as an instruction to a jury, would seem quite confusing and self-contradictory.

On a full examination of our decisions, however, we are impressed the trial court was endeavoring to follow them, and some clarification should be made for the guidance of trial courts and the Court of Appeals.

In cases involving the identity of the accused, evidence of an alibi frequently appears; it may be the only evidence open to defendant to overcome the evidence of the State, direct, circumstantial, or both, tending to identify the defendant with the crime charged. Because it may be, and often is simulated, supported by perjured testimony, early cases, here and elsewhere, often sanctioned instructions to the jury tending to discredit such defense. Such instructions have long been condemned in our decisions.

Nevertheless, a long line of decisions have declared the rule given by the trial court in his oral charge, namely, that the burden of proof is on defendant to sustain his alibi to the reasonable satisfaction of the jury. See, Spencer v. State, 50 Ala. 124; Pellum v. State, 89 Ala. 28, 8 So. 83; Albritton v. State, 94 Ala. 76, 10 So. 426; Pate v. State, 94 Ala. 14, 10 So. 665; Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am.St.Rep. 28; Holley v. State, 105 Ala. 100, 17 So. 102; Robertson v. State, 23 Ala.App. 267, 125 So. 60.

But alongside this statement of the law, we have another line of cases, as well as some of the foregoing, stating the rule from a different viewpoint.

McAnally v. State, 74 Ala. 9, 17, was, on the question in hand, like unto the instant case. Said the court: "The testimony in this cause shows, that the deceased came to his death by a gun-shot wound, fired at short range. Whoever did the fatal deed, was in close proximity to the deceased. Without it, he could not, and did not fire the shot. In the absence of conspiracy shown between the defendant and another, to take Hanna's life, followed by the homicide at the hands of that other, then the defendant can not be guilty, unless, at the time, he was near enough to do the deed. Proximity--opportunity--is a necessary, indispensable condition of his guilt. It is not necessary that the prosecution should, in the first instance, prove such proximity, if the testimony is otherwise sufficient. But, opportunity being an indispensable factor in the proof of defendant's guilt, if, on the whole testimony, this be left in reasonable doubt, then defendant's guilt is not established beyond a reasonable doubt.--Whar.Cr.Ev. § 333; French v. State, 12 Ind. 670 (74 Am.Dec. 229); Kaufman v. State, 49 Ind. 248; Howard v. State, 50 Ind. 190; Line v. State, 51 Ind. 172; Miller v. People, 39 Ill. 457; Otmer v. People, 76 Ill. 149; Stuart v. People, 42 Mich. 255, (3 N.W. 863); Com. v. Choate, 105 Mass. 451; State v. Waterman, 1 Nev. 543; Pollard v. State, 53 Miss. 410 (24 Am.Rep. 703); Chappel v. State, 7 Cold. (Tenn.) 92."

In Albritton v. State, supra, it was said: "An alibi is not, in the strict and accurate sense, a special defense, but a traverse of the material averment in the indictment, that the defendant did, or participated in, the particular act charged, and is comprehended in the general plea, 'not guilty.' "

In Pate v. State, supra, the opinion concludes [94 Ala. 14, 10 So. 666]: "We lay down the true rule to be that proof adduced to support an alibi should be [weighed and] considered by the jury with the other evidence in the case; [[and as other facts are weighed and considered], and if, upon the whole evidence, there is a reasonable doubt of defendant's guilt, he should be acquitted."

In Prince v. State, supra, the law is thus stated [100 Ala. 144, 14 So. 410, 46 Am.St.Rep. 28]: "If the jury were reasonably satisfied, from the evidence, that the defendant was elsewhere, and not at the place where the offense was committed, at the time it was committed, the burden cast upon him by the law is fully met. Pellum v. State, 89 Ala. 28, 8 So. 83; Pate v. State, 94 Ala. 14, 10 So. 665; Albritton v. State, 94 Ala. 76, 10 So. 426. The defense of an alibi is as legitimate and effective as any other; and whenever the evidence introduced supports this defense, and its effect is to create a reasonable doubt in the minds of the jury of the defendant's guilt, he is as much entitled to an acquittal as if the reasonable doubt had been created or produced by any other legitimate evidence. We would not be understood as saying that the jury may disregard other evidence in the case, and consider only that in relation to the alibi. The whole evidence should be duly considered and weighed, and if, after considering the whole evidence, the jury have a reasonable doubt of the defendant's guilt, arising out of any part of the evidence, they should acquit. Hurd v. State, 94 Ala. 100, 10 So. 528; Albritton v. State, 94 Ala. [76], 78, 10 So. 426; Pate case, supra."

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