Spraggins v. State

• Decision Date: 19 January 1904
• Citation: 139 Ala. 93,35 So. 1000
• Parties: SPRAGGINS v. STATE.
• Court: Alabama Supreme Court

35 So. 1000

139 Ala. 93

SPRAGGINS v. STATE.

Supreme Court of Alabama

January 19, 1904

Appeal from Circuit Court, Cherokee County; J. A. Bilbro, Judge.

George Spraggins was convicted of assault with intent to murder, and appeals. Reversed.

The bill of exceptions recites that the defendant, "before announcing 'Ready for trial,' and before he further pleaded to said indictment, filed his plea of former jeopardy," etc., which plea was set out at length in the bill of exceptions. In this plea it was averred that the prosecution had been commenced against this defendant before the judge of the county court of Cherokee county, by the making of an affidavit and the issuance of a warrant charging the defendant with a misdemeanor, a copy of which affidavit and warrant were attached to said plea. It was further averred therein that, upon the hearing of said prosecution the judge of the county court investigated the charge, and instead of finally disposing of said prosecution by fine and imprisonment, as he had jurisdiction to do, and as it was his duty to do, he bound the defendant over to await the action of the grand jury, and committed him to jail; that the facts involved in the prosecution before the judge of the county court were identically the same facts, and in reference to the same transaction, as were involved in the present indictment. The affidavit and warrant, copies of which were attached as an exhibit to the plea, show that the defendant was, in said prosecution, charged with assault with intent to murder; and it was further shown by the indorsements thereon and by the mittimus issued by said county court, that the defendant was bound over to await the action of the grand jury. The state moved the court to strike this plea from the file. The court sustained this motion, and the defendant duly excepted.

The state introduced evidence tending to show that Virgil Pruett the party alleged in the indictment to have been assaulted was shot late one Saturday afternoon, September 20, 1902, while he and two or three other persons were in the public road; that he was shot in his face and in the side; that the person who did the shooting was in ambush, being hidden behind some bushes 30 or 40 yards from where said Pruett was standing when he was shot; that after the shooting the person who did the shooting was seen to run off in the opposite direction, and some of the witnesses testified that he looked like the defendant.

Upon the introduction of G. W. Kelly as a witness for the state, he testified that, about 3 o'clock on the afternoon of the shooting, he saw some man going through his field, about one-quarter of a mile from where the shooting occurred; that he was not close enough to say positively who it was, but that the person was about the size of the defendant, and looked like the defendant; that he was well acquainted with the defendant. The defendant moved to exclude this portion of the testimony upon the ground that it was illegal and irrelevant, and not material to any issue involved.

Upon the examination of one Hyde as a witness for the state, he testified that he was acquainted with the defendant and Pruett, the party who had been shot; that he had a conversation with the defendant about a week before the shooting, in which he and the defendant discussed what a fine man, physically, Pruett was, and that the defendant said "Pruett was very much of a man, and, if he was forced to fight him, he would not fight him fair." The defendant moved to exclude this statement of the witness Hyde from the jury on the ground that it was illegal, irrelevant, and incompetent evidence. The court overruled the motion, and the defendant duly excepted.

In addition to the first charge, which is copied in the opinion the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury believe the evidence in this case, they will find in favor of the defendant, on the plea of former acquittal or former jeopardy. (2) The defendant is not called upon to show the jury that some one else did or may have done the shooting. And the fact that no one else may be suspected of the shooting is not of itself sufficient to fasten guilt upon this defendant. (3) The court charges the jury the evidence against the defendant is circumstantial, and, before you can find the defendant guilty, each individual juror must be satisfied beyond all reasonable doubt by the evidence, and to a moral certainty, that no other person could have done the shooting. (4) The court charges the jury a probability that some other person may have done the shooting is sufficient to create a reasonable doubt of the guilt of the defendant, and therefore for his acquittal. (5) The jury are not required to find who did the shooting, unless they are convinced by the evidence, beyond all reasonable doubt, that the defendant did it. (6) Circumstantial evidence that will authorize a conviction must be as strong and convincing as positive testimony. (7) If the jury find from all the evidence in this case that the evidence tending to connect the defendant with the shooting, if there is such evidence, is circumstantial, then this circumstantial evidence must be as strong and convincing as positive testimony. (8) The court charges the jury, before you can convict the defendant, each of you must be satisfied to a moral certainty by the evidence not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and, unless each of you are so conviced by the evidence of defendant's guilt that you would each venture to act upon that decision in matters of highest concern and importance to your own interest, then you must find the defendant not guilty. (9) The court charges the jury, if you would not be willing to act upon the evidence in this case if it was in matters of most solemn importance to your own interests, then you must find the defendant not guilty. (10) The court charges the jury, if the state has failed to convince each of you by the evidence that the defendant was present at the shooting of Pruett, to that degree of certainty that you would venture to act upon that conviction in matters of serious concern and importance to your interest, then it is your duty to, and you must, find defendant not guilty. (11) The jury cannot guess at defendant's guilt, but must be convinced by the evidence, and beyond all reasonable doubt, that defendant is guilty, or they cannot convict; and, unless the jury find that the testimony of the witnesses declares positively and beyond all reasonable doubt that defendant is guilty, the jury cannot so find. (12) The jury, by their verdict, cannot go beyond the testimony of the witnesses in this case, and, unless such witnesses have proven positively and beyond all reasonable doubt that defendant did the shooting, then the jury cannot convict. (13) The court charges the jury the evidence in this case is circumstantial, and each fact constituting the chain of circumstances in this case must be established beyond a reasonable doubt, and to a moral certainty, before you can find the defendant guilty. (14) The court charges the jury the humane provisions of the law are that upon circumstantial evidence there should not be a conviction unless, to a moral certainty, it excludes every other reasonable hypothesis 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...