Whittle v. State, 3 Div. 463

CourtSupreme Court of Alabama
Writing for the CourtSOMERVILLE, J.
Citation205 Ala. 638,89 So. 48
Decision Date27 January 1921
Docket Number3 Div. 463
PartiesWHITTLE v. STATE.

89 So. 48

205 Ala. 638

WHITTLE
v.
STATE.

3 Div. 463

Supreme Court of Alabama

January 27, 1921


Rehearing Denied May 5, 1921

Appeal from Circuit Court, Conecuh County; John B. Lee, Judge.

Booker T. Whittle was convicted of murder in the first degree, and he appeals. Affirmed.

Robert H. Jones and L.B. Chapman, both of Evergreen, and Emmet S. Thigpen, of Andalusia, for appellant.

J.Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SOMERVILLE, J.

The defendant was indicted and tried for murder in the first degree, and appeals from a judgment of conviction.

In his oral charge to the jury the trial judge instructed them as follows:

"Before the jury can convict the defendant, each one of the jury must believe beyond all reasonable doubt that the defendant is guilty. Yet it does not follow that the defendant should [89 So. 49.] be acquitted unless each one of you believe beyond all reasonable doubt that the defendant is guilty. But, if one or several of you believe beyond all reasonable doubt that the defendant is guilty, and one or more of you entertain a reasonable doubt of his guilt, there would be no verdict, but a hung jury."

This instruction was unquestionably correct, and no exception was taken thereto. In further exposition of the subject, the judge then said:

"In other words, it takes 12 men to believe that he is guilty beyond a reasonable doubt before you can convict him and it takes 12 men to believe that is not guilty beyond a reasonable doubt to acquit him; in other words, it takes 12 men to arrive at a verdict, and unless 12 men arrive at a verdict one way or another it is a hung jury or a mistrial."

Defendant duly excepted to all of the foregoing instruction down through the italicized portion. If it be conceded, for the argument, that the italicized clause was erroneous and prejudicial, yet, since the preceding clause was a correct statement of the law, the exception to the whole cannot be sustained. 4 Michie's Dig. 475, § 583, collecting the authorities.

But we think that even the italicized clause, though capable of misconstruction, is, when properly read and understood, entirely correct in its statement of the law. Its ambiguity lies in the possibly variant phrasings of the words used. Their proper allocation, as evidently intended by the judge, and in harmony with the other portions of his charge, may be indicated as follows: "And it takes 12 men to...

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7 practice notes
  • Fields v. State, Nos. 1137
    • United States
    • Supreme Court of Alaska (US)
    • August 6, 1971
    ...the trial court may have erroneously conveyed a suggestion that the jury would be confined until a verdict was reached. Whittle v. State, 205 Ala. 638, 639, 89 So. 43, 48 (1921); Mallory v. State, 141 Ark. 496, 217 S.W. 482 Notwithstanding the peremptory character attributed to the Allen ch......
  • Whittle v. State, 3 Div. 462
    • United States
    • Alabama Supreme Court
    • January 27, 1921
    ...you reach the conclusion that the defendant is not guilty, you cannot return a verdict of acquittal, and it would be a hung jury; in other [89 So. 48.] words, it takes 12 to convict and 12 to acquit, and that is a fact you cannot arrive at a verdict but it would be a hung jury and you stay ......
  • Scott v. State, 8 Div. 540.
    • United States
    • Supreme Court of Alabama
    • April 12, 1934
    ...thereon before the trial court. White v. State, 209 Ala. 546, 96 So. 709; Charley v. State, 204 Ala. 687, 87 So. 177; Whittle v. State, 205 Ala. 638, 89 So. 48; Johnson v. State, 205 Ala. 665, 89 So. 55; Jiles v. State, 218 Ala. 658, 120 So. 147, and authorities. In the cases of Roan v. Sta......
  • White v. State, 6 Div. 904.
    • United States
    • Supreme Court of Alabama
    • May 31, 1923
    ...such proceedings are upon appeal presumed to have been regular and legal. Charley v. State, 204 Ala. 687, 87 So. 177; Whittle v. State, 205 Ala. 638, 89 So. 84; Johnson v. State, 205 Ala. 665, 89 So. 55. It is recited that the defendant waived the drawing and subp naing of a special venire ......
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7 cases
  • Fields v. State, Nos. 1137
    • United States
    • Supreme Court of Alaska (US)
    • August 6, 1971
    ...the trial court may have erroneously conveyed a suggestion that the jury would be confined until a verdict was reached. Whittle v. State, 205 Ala. 638, 639, 89 So. 43, 48 (1921); Mallory v. State, 141 Ark. 496, 217 S.W. 482 Notwithstanding the peremptory character attributed to the Allen ch......
  • Whittle v. State, 3 Div. 462
    • United States
    • Alabama Supreme Court
    • January 27, 1921
    ...you reach the conclusion that the defendant is not guilty, you cannot return a verdict of acquittal, and it would be a hung jury; in other [89 So. 48.] words, it takes 12 to convict and 12 to acquit, and that is a fact you cannot arrive at a verdict but it would be a hung jury and you stay ......
  • Scott v. State, 8 Div. 540.
    • United States
    • Supreme Court of Alabama
    • April 12, 1934
    ...thereon before the trial court. White v. State, 209 Ala. 546, 96 So. 709; Charley v. State, 204 Ala. 687, 87 So. 177; Whittle v. State, 205 Ala. 638, 89 So. 48; Johnson v. State, 205 Ala. 665, 89 So. 55; Jiles v. State, 218 Ala. 658, 120 So. 147, and authorities. In the cases of Roan v. Sta......
  • White v. State, 6 Div. 904.
    • United States
    • Supreme Court of Alabama
    • May 31, 1923
    ...such proceedings are upon appeal presumed to have been regular and legal. Charley v. State, 204 Ala. 687, 87 So. 177; Whittle v. State, 205 Ala. 638, 89 So. 84; Johnson v. State, 205 Ala. 665, 89 So. 55. It is recited that the defendant waived the drawing and subp naing of a special venire ......
  • Request a trial to view additional results

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