Turner v. State

• Decision Date: 13 October 1965
• Docket Number: 8 Div. 2
• Citation: 43 Ala.App. 42,179 So.2d 170
• Parties: James TURNER v. STATE.
• Court: Alabama Court of Appeals

Page 170

179 So.2d 170

43 Ala.App. 42

James TURNER v. STATE.

8 Div. 2.

Court of Appeals of Alabama.

Oct. 13, 1965.

David U. Patton, Athens, for appellant.

Richmond M. Flowers, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

CATES, Judge.

The cause was submitted May 6, 1965.

Turner was convicted ¹ and sentenced to ten years imprisonment on a jury's verdict of guilty of second degree murder.

The State waived electrocution as punishment and the defendant forewent the right to a special venire. Code 1940, T. 30, § 70. A majority of the panel in Burgess v. State, 256 Ala. 5, 53 So.2d 568 (hn. 8), seems to have approved the practice.

We have taken the following statement of facts from the appellant's brief:

'* * * Saturday * * * June , 1964 * * * James Lester Turner, * * * was living with * * * Mae Bell Williams. * * *

'Mae Belle Williams' daughter, Emma Jean [or Imogene] Williams was living with Alvin (Alvie) Lee Hisbon. Emma Jean and Alvie Lee were not married. Emma Jean had five children living with her, some of whom were by Alvie Lee. All were living together in one house * * *

'* * * an argument [arose] * * * between [Turner] and * * * Hisbon * * * on Friday night * * * regarding a light bill * * *.

'* * * Defendant [Turner] left home early Saturday morning, * * * he returned an hour or so before noon * * * Hisbon went to get some whiskey * * * and brought * * * [it] back to the house * * * both [he] and Turner drank of it * * * on the front porch * * *. [This drinking probably was before breakfast.]

'* * * after the whiskey was consumed, Defendant and * * * Hisbon had another argument * * * After this argument, both Defendant and [Hisbon] left the home, for how long does not appear.

'About the noon hour, both Defendant and * * * Hisbon were back * * *. The Defendant had walked out the front door, around the side of the house to a shed where he said he kept a shotgun * * * to go rabbit hunting.

'The State's evidence tends to indicate that the Defendant had threatened * * * Hisbon and went to get the gun to kill [him].

'* * * both [men] were in the back yard * * *; Defendant used [the gun] to shoot * * * Hisbon in the stomach * * *.

'Evidence for the defendant [was that] * * * Hisbon advanced on the Defendant with a large metal garbage pail top in one hand and his other hand reaching in his pocket; that the deceased regularly carried a pocket knife; that the deceased kept advancing upon the Defendant, who told him to stop and it was only then that the shooting took place.

'The State's evidence tends to show that the Defendant had threatened to kill either the deceased or other members of the family a short while before the killing, that he shot and killed Hisbon without provocation; * * *

'* * * the Sheriff [started to testify] as to a purported confession * * *. However, on cross-examination it turned out the [claimed] confession was recorded on tape and when this conversation was played to the jury, it is quite apparent that the Defendant was, as the Sheriff testified, 'under shock' or 'in a condition of shock' and about all he did or said was to agree with all and any statement, suggestion or question that the Sheriff made.'

We take up the defendant's argument point by point.

The State's first witness, Imogene [or Emma Jean] Williams, a cohabitant with deceased of the premises, testified that when Turner left he said he was coming back and kill some sons of bitches. On cross she testified that no one did anything in reaction to Turner's announcement.

On redirect, the solicitor elicited from her that 'some of you all called the law.' Defense objected, but it came after the witness had answered.

Later, on further examination by both defense counsel and the judge, it developed that the witness had not heard anyone call 'the law,' rather that she had called the ambulance. Whereupon, the court, ex mero motu, excluded from the jury's consideration the statement as to the law having been called.

Defense counsel then moved for a mistrial on the ground that, transitory though its reception was, the evidence was yet illegal and 'purely to bias this jury.' The motion was denied. Correctly so, because (1) the original reception had been brought about by matter first explored by the defense; (2) the court promptly excluded it when shown as actually to be hearsay; and (3) it was harmless.

II.

Relying on the rule of bringing out all of a conversation where part has been elicited by the other party, on redirect the solicitor asked the sheriff, over objection:

'Just tell the jury what Maxine did tell you.'

The sheriff's answer was unresponsive. The court then remarked, 'I don't believe I'll let him go into all those details.' See Ivory v. State, 237 Ala. 344, 186 So. 460; Southern Cement Co. v. Patterson, 271 Ala. 128, 122 So.2d 386.

Hence, the question objected to analytically was never answered, and the unresponsive matter was withdrawn by the court.

III.

Defendant requested the following requested charge which the court refused:

'5. The court charges the jury that if the defendant was free from fault in bringing on the difficulty he would be under no duty to retreat unless you believe he could have retreated without increasing his danger or with reasonable safety.'

The trial judge in his oral direction covered the substance of this charge.

IV.

Charge 7 was correctly refused for the same reason.

V.

Charge 11 refused reads:

'11. The court charges the jury that a reasonable doubt might exist although there is no probability of the defendant's innocence from the testimony; and if the jury do not have an abiding conviction to a moral certainty of the guilt of the defendant, then in that event you should acquit the defendant.'

We think the recent cases of our Supreme Court hold that variations and shifting emphasis of the different facets of moral philosophy as to the concept of reasonable doubt do not make mandatory that the trial judge duplicate and proliferate the essential idea of the jury's being convinced from the evidence beyond a reasonable doubt and to a moral certainty.

A uniform generalization, i.e., a certainty, in logic, is a rigorous conclusion; e. g., 'What goes up must come down.'

A statistical generalization, i.e., a probability, in logic, is a comparative conclusion; e. g., 'Usually a ball will roll down hill.' But the given premises need not invariably dictate the outcome.

Perhaps, using the laws of chance, a mathematician could point out where a probability descends into a mere possibility. Yet, when we say 100-1 against an assertion, are we saying that an affirmative is probable in one time out of a hundred? Or, can we affirm that 199 negatives will appear before two positives show up?

The Law of Averages is more a conversation piece than a rule of law.

In a tort action (Haskins v. Haskins (1857), 9 Gray (75 Mass.) 390), the trial court instructed 'that the burden of proof was on the plaintiff to make out the injury set forth in his declaration; that this burden would be sustained, if upon the whole proof there was a preponderance of evidence, that is to say a balance of the probabilities of the case, in his favor.'

The Supreme Judicial Court, per Bigelow, J., reversed, saying:

'* * * The 'weight' or 'preponderance of proof' is a phrase constantly used, the meaning of which is well understood and easily defined. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. But the phrase, 'balance of probabilities,' used by the judge in his instructions as equivalent to the words 'preponderance of proof,' has no well settled or clearly defined meaning. It is at best a vague and indefinite phrase, and would rather lead the jury to infer that they might form their verdict on a guess at the truth, gathered from the evidence, than on a real solid conviction of it, founded on a careful scrutiny and examination of the proof. We cannot sanction an instruction which seems to us to introduce into the practical administration of justice a new phrase of doubtful signification, which tends to cloud the meaning of that which was before clear and well understood, and to confuse and mislead the jury in the discharge of their duty.'--Haskins v. Haskins, supra.

In Odom v. State, 253 Ala. 571, 46 So.2d 1 (hn. 8, charge 6), the court applied both Code 1940, T. 7, § 273, fourth sentence ² and Supreme Court Rule 45. However, Simpson, J., remarked that charge 6 had had uniform approval of appellate courts.

Charge 6 in Odom was couched in the past tense of the modal auxiliary verb, 'may,' i. e., 'might.' 'May,' used to phrase the potential mood of a verb, indicates (1) permission, (2) possibility or doubtful intention, (3) a wish.

'Might,' the past form, is idiomatically more usual in subordinate clauses, e. g., indirect discourse, as 'I told them that they might go with us.' See Kittredge and Farley, Advanced English Grammar.

Here the clause, 'that a reasonable doubt might exist although there is no probability of the defendant's innocence,' is equivalent to, 'that there was a possibility of there being a reasonable doubt although there is no probability,' etc.

It is noteworthy that Richardson, 33 Ala.App. 40, 29 So.2d 883 (hn. 2, charge 14), cited by Mr. Justice Simpson uses the less abstruse 'may.' In all the cases cited regarding charge 14 in Richardson, except Knight v. State, 23 Ala.App. 582, 129 So. 478, the form approved has 'may.'

Procrustean grammatical rules do not limit the oral charge which a trial judge gives. Yet he can be put in error if a given written charge prepared by counsel is by reason of grammatical construction unclear and hence capable of misleading the jury. Contrast Birmingham Railway Light & Power Co. v. Murphy, 2 Ala.App. 588, 56...