Russo v. State

• Decision Date: 19 May 1938
• Docket Number: 6 Div. 333.
• Citation: 181 So. 502,236 Ala. 155
• Parties: RUSSO v. STATE.
• Court: Alabama Supreme Court

181 So. 502

236 Ala. 155

RUSSO v. STATE.

6 Div. 333.

Supreme Court of Alabama

May 19, 1938

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Frank Russo, alias LaRusso, was convicted of murder in the first degree and sentenced to life imprisonment, and he appeals.

Affirmed.

Conviction for first-degree murder was affirmed, where defendant had benefit of learned counsel who was alert in protecting rights of defendant, nothing appeared in record which showed error or suggested hostility in county of trial against defendant all of defendant's legal and constitutional rights appeared to have been observed and protected, and the evidence was sufficient to support the verdict.

The following charges requested by the defendant were refused:

5. "I charge you, gentlemen of the jury, that if there is one single fact proved to the satisfaction of the jury which is inconsistent with defendant's guilt this is sufficient to raise a reasonable doubt and the jury should acquit him."

32. "The Court charges the jury that before the jury should convict the defendant the hypothesis of his guilt should flow naturally from the facts proven and be consistent with all facts in the case."

38. "The Court charges the jury that if there is from the evidence a reasonable probability of the defendant's innocence, then the jury should acquit the defendant."

47. "The Court charges the jury that each juror is required to be satisfied of the guilt of the defendant beyond a reasonable doubt, before they are authorized to find a verdict of guilty and each juror must be separately and segregately so satisfied to support a conviction."

69. "The humane provision of the law is that upon circumstantial evidence there should not be a conviction unless to a moral certainty it excludes every other reasonable hpyothesis than that of the guilt of the accused. No matter how strong may be the circumstances if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by the full measure of proof the law requires."

73. "The Court charges the jury that the evidence against the defendant in this case is partly circumstantial, and his innocence must be presumed by the jury until the case is proved against him in all its material circumstances, beyond a reasonable doubt. That to find him guilty as charged, the evidence must be strong and cogent and unless it is so strong and cogent as to show the defendant's guilt to a moral certainty, they must find the defendant not guilty."

80. "The Court charges you, gentlemen of the jury, that circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence, and you should be so convinced by it that each would be willing to act on the decision in a matter of the highest concern to themselves."

91. "The Court charges the jury that if they are not satisfied beyond a reasonable doubt, and to a moral certainty, and to the exclusion of every reasonable hypothesis but that of his guilt, then they should find him not guilty; and it is not necessary to raise a reasonable doubt, that the jury should find from all the evidence a probability of defendant's innocence, but such a doubt may arise, even where there is no probability of defendant's innocence, but such a doubt may arise even where 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."

Bains &amp Bains, of Bessemer, for appellant.

A. A. Carmichael, Atty. Gen., for the State.

KNIGHT Justice.

Frank Russo, alias Frank LaRusso, appellant, was tried and convicted of murder in the first degree, under an indictment preferred by a Grand Jury in the Circuit Court of Jefferson County, Bessemer Division, and from this conviction he appeals.

The victim of the murder was the wife of the defendant. The scene of the crime was some few miles from Bessemer.

The deceased was shot several times, one of the bullets entered at the back of the neck and came out through the mouth, one entered her head back of the left ear, and came out the right lower jaw. There was a bullet wound in the left shoulder above the clavicle. There was also a bullet wound in the left hand, the bullet went entirely through the hand, entering the back of the hand, and coming out through the palm. There were powder burns surrounding each wound or bullet entrance, all evidencing the fact that the shots were fired at close range. There was no evidence or sign of any scuffle where the body was found, nor did her clothes indicate that they had been ruffled in any way.

The evidence showed that the defendant, at about the hour of 8:00 A. M., on June 2nd, 1937, took his wife in his automobile from his home in Bessemer, and drove out several miles into the country, under the pretense of getting a gallon of whiskey; that he stopped his car on a lonely road side, at a point where the woods came up to the road on one side, and it was at this point where the dead body of the woman was found some two to three hours later. It was also evident that at the time the woman was shot she was picking berries, for when found she had some of the berries in her hands.

The evidence offered by the state to connect the defendant with the murder, though circumstantial, points with unerring certainty to the defendant as the perpetrator, and to no one else. This evidence does not, as supposed and contended by appellant's counsel, simply raise a suspicion of the appellant's guilt, but was ample, if believed by the jury, to sustain conviction against the defendant of murder in the first degree. In fact, it would be exceedingly difficult to see just how the jury could have reached any other conclusion than they did, under the evidence in this case. The jury alone were triers of the fact. Nor was a motive lacking for the crime. The evidence tended to show, and if believed by the jury, did show, that the appellant had become enamored of his sister-in-law, Mary Antonio, and it was open to the jury to find from the evidence that this love for his said sister-in-law led the appellant to murder his wife.

Our conclusion is that the evidence made a clear case for the jury, and the court properly refused to give the general affirmative charge for the defendant. This charge should never be given in cases where the evidence is sufficient to support a conviction. Montgomery v. State, 169 Ala. 12, 53 So. 991.

The record shows that the defendant requested more than ninety-five special charges, and that the...