Way v. State

• Decision Date: 09 April 1908
• Citation: 155 Ala. 52,46 So. 273
• Parties: WAY v. STATE.
• Court: Alabama Supreme Court

46 So. 273

155 Ala. 52

WAY v. STATE.

Supreme Court of Alabama

April 9, 1908

Appeal from Circuit Court, Morgan County; D. W. Speake, Judge.

Cliff Way was convicted of murder in the second degree, and he appeals.Reversed and remanded.

Cliff Way was indicted for the murder of one Jones, convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of 13 years.The facts of the case, together with exceptions to evidence, are sufficiently stated in the opinion of the court.

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

"(1) I charge you, gentlemen of the jury, that if you believe from all the evidence, beyond a reasonable doubt, that the defendant is guilty, though you also believe it is possible that he is not guilty, you must convict him.

"(2) I charge you, gentlemen of the jury, that each member of the jury must agree on a verdict before you can convict or acquit the defendant."

The following charges were refused to the defendant:

"(1) If you find from the evidence that Moore fired the shot that killed J. Lem Jones, then I charge you, gentlemen of the jury, that, before you can convict this defendant under this indictment, you must believe from the evidence, beyond all reasonable doubt and to a moral certainty, that this defendant actually participated in the killing of said Lem Jones, or that he and Moore had by preconcert agreed to do some act from which the death of Lem Jones or some other person would proximately result from the doing of such act or that there was a community of purpose between Moore and this defendant to kill Jones, or do some act from which the death of Jones or some other person would flow as a proximate result of doing such act, or that this defendant aided and abetted in the doing of said act, or aided and abetted Moore in killing Jones.If, after considering all the evidence, you find that Way did not participate in the killing of Jones, and had not agreed with Moore to do some act from which the death of Jones or any other person would flow as a proximate result of the doing of such act, and that this defendant did not aid and abet in the doing of said act, nor aid nor abet Moore in the killing of Jones, then your verdict should be not guilty."

"(37) If, after a consideration of the entire evidence in this case, the evidence of defendant's innocence outweighs or overbalances the evidence of his guilt, you should find the defendant not guilty."

"(40) If the evidence is reasonably consistent with defendant's innocence, you should promptly acquit him."

"(62)The court charges the jury that if they believe from the evidence that the defendant and Waymond Moore went to the house of Alice Williams on the night the killing is said to have been done, and an offense was committed by one of them from causes having no connection with the common object for which they went there, the responsibility for such offense rests solely on the actual perpetrator of the crime, and the jury cannot find the defendant guilty simply because he happened to be present at the time the offense was committed."

"(48) If you find from the evidence that Moore fired the shot which killed Jones, and that said killing was done maliciously, still, if Way did not entertain malice towards Jones at the time of the killing, then Way cannot be convicted either of murder in the first or second degree, unless you find that Way, with knowledge of the malice on the part of Moore, aided, abetted, or encouraged Moore in the killing."

"(42) I charge you, gentlemen of the jury, if you believe from the evidence that Moore fired the shot that killed Jones without encouragement from this defendant, your verdict should be not guilty, unless you believe, beyond all reasonable doubt and to a moral certainty, that there was a prearrangement or a conspiracy existing between Way and Moore that Moore should kill him."

"(3) If from the evidence in this case you find that Moore and Way had not by preconcert or agreement conspired to kill Jones, nor to do any other unlawful act from the doing of which the death of Jones would naturally and proximately result, and if you further find that Moore fired the shot that killed Jones, then, if this be so, I charge you that, before you can convict this defendant, Way, on the ground that he aided or encouraged Moore by acts or words at the time Moore shot Jones, if he did shoot him, you must believe, beyond all reasonable doubt and to a moral certainty: (1) That said act or words were done or spoken by Way at the time of the shooting; (2) you must believe, beyond all reasonable doubt, that Moore had knowledge of said acts or words if done or spoken; and (3) you must believe, beyond all reasonable doubt, that Moore had knowledge that said act or words were done or said for the purpose of aiding and abetting him in the killing of Jones."

"(10) If, from the evidence in this case, you find that Moore fired the shot that took the life of Jones, then, before this defendant, Cliff Way, can be found guilty of said killing, you must find from the evidence, beyond all reasonable doubt, that Moore and Way entered into a conspiracy to do so by some understanding or agreement beforehand, or that Way aided or abetted in said killing; and I charge you, gentlemen of the jury, that the mere fact that Way was present when the killing was done, if he was present, would not of itself alone be sufficient to constitute Way an aider or abettor of Moore, unless Way was present to the knowledge of Moore with intent to aid him.In order to constitute Way an aider or abettor of said killing, he must have been present by preconcert, special or general, or at least to the knowledge of Moore, with the intent to aid him, provided there was no assistance given by Way to Moore, or words uttered encouraging Moore to do the shooting, or such conduct, demonstrations, or menaces on the part of Way as would aid, incite, encourage, or induce Moore to do the killing.And if, after a consideration of all the evidence in the case, you are not convinced, beyond all reasonable doubt, that there was such a conspiracy beforehand, or aiding or abetting at the time of the killing, your verdict should be not guilty."

"(43) If the evidence is evenly balanced as to the guilt or innocence of defendant, then you, gentlemen of the jury, should lean to the side of mercy, and decide in favor of the defendant."

"(33) The test of the sufficiency of circumstantial evidence in a criminal case is whether the circumstances, as proven, are capable of explanation upon any reasonable hypothesis consistent with the defendant's innocence, and, if they are capable of such explanation, then the defendant should be acquitted."

"(68 1/2) The fact, if it be a fact, that defendant's character was not discussed until after he was accused of killing Jones, is not evidence that his character is not good.Under the law, the best character is generally that which is least talked about.This is negative evidence of good character which is frequently the most satisfactory kind."

"(35) In determining whether the defendant's flight from the scene of the shooting was from a sense of guilt or not, you can look to the fact, if it be a fact, together with all the evidence in the case, that defendant surrendered himself to the deputy sheriff of Lawrence county."

"(41) Gentlemen of the jury, the fact, if it be a fact, that the state has failed to prove a motive upon the part of this defendant to shoot Lem Jones, if such is the fact, is a circumstance to which you may look in connection with all the evidence in determining whether he shot Jones."

"(50) I charge you, gentlemen of the jury, that, if you believe all the evidence in this case, you should find that the deceased Jones, was killed by Waymond Moore.

"(51) If, after considering all the evidence, you find that Moore fired the shot that killed Lem Jones, your verdict in this case should be not guilty.

"(52) I charge you, gentlemen of the jury, that there is no evidence in this case showing a conspiracy or prearrangement on the part of this defendant and Moore to take the life of Jones.

"(53) There is no evidence in this case that the defendant, Way, entered into a conspiracy with Moore to kill Jones."

"(65) It is not incumbent on the defendant in this case to produce evidence to show what became of policeman Jones' pistol, if he had one on his person at the time he was shot, if you find that he was shot.

"(66) There is no evidence in this case that the defendant got Jones' pistol, if he had one at the time he was shot."

Brown & Kyle and Wert & Lynne, for appellant.

Alexander M. Garbert, Atty. Gen., and Callahan & Harris, for the State.

DOWDELL J.

The defendant was indicted for the murder of J. Lem Jones, was tried and convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of 13 years.From the judgment of conviction the present appeal is prosecuted.

The defendant complains that errors prejudicial to him were committed on the trial in rulings of the court on the evidence, and the refusal to give certain instructions to the jury requested by him in writing.The first ruling of the court complained of as error was in permitting the witness McClusky, against the defendant's objection, to testify that the hard object which...