Dick v. State , 87 Ala. 61 ( 1888 )

STONE, C. J.

The charge of the court, as shown in the bill of exceptions, is not divided into sections, paragraphs, or separate divisions. The exception is, “to the giving of each of which the defendant then and there severally excepted.” We have many times ruled that an exception thus reserved is equivalent to a general exception to the whole charge, and will not be considered by us, unless the charge is faulty in each principle it asserts. — 3 Brick. Digest, 80, 34, 37. Some of the principles announced in the charge, if stated separately, we might consider misleading, if not erroneous; but the assertion that “the State is not required to prove the guilt of the defendant to a mathematical certainty,” is unquestionably the law.

Any artificial rules for determining the credibility of testimony, should generally be avoided. Jurors, who observe the witness while he is testifying, his manner, his intelligence, his appearance, his bias, or the absence of it, and many other nameless indicia, are, as a rule, the best determiners of the truth or falsity of parol testimony. It is their highest duty to arrive at the truth if they can, and in doing so, they must accord to the entire evidence that weight, and only that weight, with which it impresses them. In criminal prosecutions, the testimony must establish the guilt of the accused beyond a reasonable doubt; or, which is the same thing, to a moral certainty. If, weighing the whole testimony, it comes up to this standard — that is, convinces the jury to a moral certainty that the accused is guilty — then the verdict should be “guilty,” notwithstanding there may remain a possibility, a perhaps, or a may be that he is not guilty. The doubt which demands acquittal against such criminating evidence, must be a reasonable doubt, and not a mere possibility of innocence.

The charge asked by defendant was properly refused.

The prisoner was arraigned on Thursday, January 17th, 1889, and the ensuing Saturday, 19th, was set for his trial. The court ordered, “that the sheriff be, and is hereby, directed and commanded to summon sixty jurors, including those summoned on the regular juries for the week,” from which to organize a jury for the trial of the accused. It will be observed that the day set for the trial was during the same week in which the order was made; and the trial was had on the day appointed. This order was made under section 4320, Code of 1886, — section 4874, Code of 1876. Of the petit jurors summoned for the week, one failed to appear, and consequently was not in attendance, nor one of the number composing the juries organized for the week. In Floyd v. State, 55 Ala. 61, interpreting the section of the Code referred to, it was decided that the true construction was, that only such of the jurors summoned as were in attendance on the court, should constitute a part of the venire for the trial of a capital felony. See § 4324, Code of 1886. That case was followed in Lee v. State, 55 Ala. 259; Posey v. State, 73 Ala. 490, and Jackson v. State, 77 Ala. 18. The court erred in putting on the defendant a juror, who, though summoned, was not a member of either of the juries organized for the week, and was not in attendance on the court. The effect was to deny to the accused one of the sixty persons, which the order of the court had directed should constitute the special venire.

The rule is different, when the trial and the order setting a day for it occur in different weeks. It not being ascertainable what number of the summoned jurors will be in attendance, the statute is conformed to when the jurors summoned for the particular week are made a part of the venire.—Morrison v. State, 84 Ala. 405.

We are aware that, in the order for a special venire in this case, the presiding judge pursued the exact language of section 4320 of the Code of 1886 — section 4874, Code of 1876; section 4175, Code of 1867. In Floyd's case, 55 Ala. 61, which arose under the Code of 1867, we interpreted that section in connection with section 4324, and decided that, in cases like the present, Where the order setting a day for the trial, and the trial itself, occur in the same week, only those jurors summoned for the week who are in attendance, are to be placed on the special venire. We held that this was the legitimate interpretation of the two sections, when construed together. We pursued and emphasized that ruling in Shelton's case, 73 Ala. 5; and the ruling in Posey's case, Ib. 690, rests on the same principle. The interpretation we then gave, and which we adhere to, casts on the presiding judge the duty of being specific in his directions, and leaves to the sheriff no room for mistakes. This is the safer practice. Since Floyd's case was decided, those sections have passed ihrough two Code revisions, without change; and this is, at least, some evidence that the codifiers and the legislature have approved the interpretation.

Reversed and remanded,