Smith v. State

• Decision Date: 03 February 1910
• Citation: 51 So. 610,165 Ala. 50
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

51 So. 610

165 Ala. 50

SMITH v. STATE.

Supreme Court of Alabama

February 3, 1910

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

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

The following charges were given at the request of the state:

"(1) Defendant is a competent witness in his own behalf; yet, in considering his testimony, you would be authorized to weigh it in the light of the interest he has in the result of your verdict, together with all the testimony in the case.

"(2) You are the sole judges as to the weight that should be given to all the testimony in the case.

"(3) It is not a mere doubt that authorizes an acquittal. The doubt that authorizes an acquittal must be a reasonable doubt."

The following charges were refused to the defendant:

"(8) I charge you, gentlemen of the jury, that while it is true that the guilty, when legally and properly proven beyond all reasonable doubt to be so, should be punished, yet it is equally true that, unless guilt is shown by the testimony which comes up to the high standard which has been wisely and humanely prescribed for the trial of a crime, the accused should be acquitted. Better, far better, that the guilty go unpunished than that the innocent or those whose guilt is not shown beyond a reasonable doubt should be punished."

"(13) I charge you, gentlemen of the jury, that if you believe from the evidence in this case that the defendant had no motive, design, or intent to take the life of Rodgers, but that the killing was the result of the reckless, careless, and inadvertent handling of a pistol, then you should acquit him."

"(16) I charge you, gentlemen of the jury, that the state is as much interested in the acquittal of the innocent as it is in the conviction of the guilty; and if you have a reasonable doubt of defendant's guilt, you must acquit him, the law says."

"(22) I charge you, gentlemen of the jury, that a reasonable doubt may exist, though there is no probability of the defendant's innocence from the testimony; and if the jury have not an abiding conviction to a moral certainty of his guilt, then they should find him not guilty."

"(25) The court charges the jury that, if you find from the evidence in this case that the pistol was accidentally discharged, and you further find that it was not intentionally pointed at deceased, then you should acquit the defendant."

"(27) The indictment against the defendant does not raise the presumption of guilt; but, to the contrary, he is presumed to be innocent, and this presumption remains throughout the trial of this case, and until each and every juror is satisfied beyond all reasonable doubt of his guilt, and if there remains in the minds of any individual juror a reasonable doubt of his guilt, you must acquit the defendant."

"(30) I charge you, gentlemen of the jury, that if you have a reasonable doubt as to whether the killing was done deliberately and premeditatedly, with malice aforethought, to take the life of Rodgers, you should acquit him."

(31) Affirmative charge.

"(33) I charge you, gentlemen of the jury, that in determining the guilt or innocence of defendant you should take into consideration his conduct at the place of the killing, what words, if any, were passed between them, his conduct towards the deceased before and after the killing, together with defendant's subsequent surrender to the sheriff; and if after a due and careful consideration of the testimony in the case, you have a reasonable doubt growing out of the evidence of defendant's guilt, then you should give the defendant the benefit of the doubt, and acquit him."

Isbell & Pressley, for appellant.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty. Gen., for the State.

EVANS J.

The defendant was indicted, at the fall term, 1909, of the circuit court of De Kalb county, for the offense of murder in the first degree. On the 23d day of August, 1909, the defendant was duly arraigned according to law, and pleaded "not guilty." Monday, the 30th day of August, 1909, was regularly set as the day for the trial of defendant, and 30 special jurors were drawn in all respects as the law directs for the trial of the case. The orders of the court were in all respects regular and in accordance with the law. On the day set for the trial, the defendant objected to being put on trial, because neither he, nor his counsel, had been served with a copy of the indictment as the law directs; that the names of the witnesses for the state which appear upon the indictment were not the same as those that appear upon the copy served on defendant.

It seems that it would need no discussion to show that the names of the witnesses for the state, written upon the back of the indictment, constitute no part of the indictment; and there is no law requiring that a list of these be served upon defendant or counsel appearing for him. These names are written upon the indictment for the benefit of the state, in order that the clerk of the court may be sure to summon the right witnesses for the state in each case, and not for the purpose of putting the defendant on notice of what witnesses the state will use.

The defendant then filed a written motion to quash the venire. Two questions of law are raised by this motion, together with the evidence and admissions of the state going to support it. The first is that in the copy of the venire served upon the defendant the name of W. A. Gilbert, who was regularly drawn as a juror for the third week of court, and whose name should have been upon the venire served upon defendant, was not on the venire; but, instead thereof, the name of W. A. Gilbreath was written thereon. The second...