Smith v. State

• Decision Date: 19 April 1906
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

40 So. 957

145 Ala. 17

SMITH v. STATE.

Supreme Court of Alabama

April 19, 1906

Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.

"To be officially reported."

Ben Smith was convicted of murder in the second degree, and he appeals. Affirmed.

The defendant was indicted and tried for killing Ovid Rollins. C.J. McCary, testifying for the state, said: "I was with Ovid Rollins after he was wounded. I went over to the place where he was shot and saw him. He looked at me and said 'John, I am killed.' He told me he was going to die frequently after he was shot, and asked me to take care of his family. The evening before Rollins died that night, he told me he was going to die, but seemed to be getting along very well. The deceased from the beginning always insisted and continually stated that he would die from the wound." Whereupon the state propounded the following question "What did Rollins say to you, if anything, as to the difficulty between defendants and himself?" The defendant objected to this question because it called for a dying declaration and no sufficient predicate had been laid and because the evidence was incompetent and illegal. The court permitted the question to be asked, and the witness answered, stating what was said to him by the deceased, and the defendant moved to exclude the answer of the witness for the same reason stated in the objection to the question.

The defendant quested the following written charges, which the court refused: Charge 1: "I charge you that if you clearly believe, from the evidence, that the death of Ovid Rollins was produced by the improper use of the sleeping tablets, then you cannot find the defendant guilty, but it will be your duty to acquit him." Charge 2: "I charge you that if you believe, from the evidence, that the deceased commenced the difficulty by calling the defendant a damn liar, and getting his knife and going on to the defendant, and cut the defendant, and that the defendant backed away from deceased, and shot the deceased while the deceased was in the act of using the knife on defendant, then you must acquit the defendant." Charge 3: "The court charges the jury that, if they believe the evidence in the case, they cannot convict the defendant of murder in either degree." Charge 5: "I charge you that if you believe, from the evidence, that the defendant was free from fault in bringing on the difficulty, and only shot to defend himself against the assault of Ovid Rollins, and that the defendant could not have retreated with safety, or could not retreat owing to the quickness or fierceness of the assault upon him, then you should acquit the defendant."

The state requested the court to give the following charges which the court gave: Charge 1: "The court charges the jury that the expressions that the jury must find the defendant not guilty 'unless the evidence against him should be such as to exclude to a moral certainty every hypothesis but that of his guilt of the offense imputed to him,' and that 'the evidence for the state should be so convincing as to lead the minds of the jury to the conclusion that the accused cannot be guiltless,' are but strong expressions of the full measure of proof which the law exacts before it will sanction a conviction of a criminal offense, all of which only means that the jury must be convinced beyond a reasonable doubt." Charge 2 "The court charges the jury that the doubt which requires an acquittal must be actual and circumstantial, not mere possibility or speculation. It is not a mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt." Charge 3: "The court charges the jury that, if you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt, and it is your duty to convict the defendant." Charge 7: "Homicide may be committed in the heat of passion suddenly aroused by a blow, and yet be done maliciously, and be murder in the second degree. Suddenly aroused passion and malice may coexist, and both cause the act. When this is the case, the homicide, otherwise indefensible murder, is not reduced to manslaughter by reason of the passion."

Logan & Vandegraff, for appellant.

Massey Wilson, Atty. Gen., and Lavender & Thompson, for appellee.

DOWDELL J.

When a capital case is set for trial on a day of the...