Allen v. State , 111 Ala. 80 ( 1895 )

McOLELLAN, J.

The testimony of Walker and Sides as to what was said to and by the defendant while Lank-ford was away from Motley’s store was properly admitted. The defendant’s declarations made at that time and in response to advice by these witnesses that he go home in order to avoid a difficulty, viz. : “I will not run from him,” and “I can’t take everything,” had an obviously pertinent bearing on the inquiry whether the defendant stabbed Lankford in resentment of the latter’s abuse of him or in self-defense.

The opinion expressed by Ben Tidwell in Lankford’s presence at Truett’s store, as the latter started back to Motley’s store, that “hell’s going to be to pay,” was properly excluded. Lankford’s purpose in returning to Motley’s store could not be shown by evidence of Tidwell’s deductions in the premises expressed in this ambiguous manner.

The defendant killed Lankford by cutting the carotid artery with a knife. But one blow was delivered or attempted. Defendant proposed to prove by Dr. Motley, who examined the fatal wound, that “a similar wound or one of the same depth and width anywhere else on the body, particularly immediately in front, or near the wound inflicted, that did not touch the carotid artery,” would not have been mortal. We suppose the purpose of this testimony was to justify or excuse or palliate the act of the defendant by showing that his stroke might well have been less accurate and consequently not fatal. Oil the same principle, if he had shot Lankford through the head, it would be competent to show that he is not responsible for his ensuing death because if his aim had been less deadly he might have pierced his ear, only and death would not have ensued. The idea is so absurd that we will not pursue it further.

The fact that Lankford was the uncle of the “Evans boys,” whose distillery had been destroyed by revenue officers, informed of its location, as Lankford insisted, by the defendant, was too remote from any issue in the case to be admissible. ,

SixGy-seven charges were requested by the defendant. Of these thirty-four were given and thirty-three refused. Excepting refused charges numbered 3, 12, 13, 45, 54, 55, 58 and 62, every proposition involved in the charges refused is embodied in substantially the same form in the charges which were given at the request of the defendant. The court was under no duty to repeat these instructions and committed no error in refusing to do so, whether these charges were abstractly sound or not. Smith v. State, 92 Ala. 30; Louisville & Nashville R. R. Co. v. Hurt, 101 Ala. 34; Murphy v. State, 108 Ala. 10.

Charge 12 was properly refused. It gives undue prominence to the evidence of deceased’s bad character for peace and quiet; and literally interpreted means that if the jury are in doubt as to who was the aggressor in the difficulty from all the evidence, including, of course, that as to Lankford’s character, they should then again consider that evidence of character in removing the doubt, and determining that he, and not the defendant, brought on the difficulty.

The opening postulate in charge 13, that if the jury believe from the evidence that the deceased had threatened to do the deceased great bodily harm, &c. &c., is sufficient to condemn it. Of a similar character with like vitiating result is the declaration in charge 58, that the jury might look to the conduct of the deceased, &c., &c.; to determine whether the defendant was a violent and dangerous man.

Charge 45, to the effect that the jury must believe that the defendant cannot be guiltless before they pan find him guilty, is affirmatively bad, as has been expressly held by this court, in that it requires too high a degree of proof.

Charge 54 is abstract. There was ho evidence of an assault by Lankford with a knife upon the defendant.

Charge 55 assumes that it reasonably appeared to defendant that Lankford had a knife open in his hand at the time therein stated. This was a question for the juiy-

We are not to be understood as holding that the charges just above considered had no other infirmities than those we have pointed out, but those referred to are sufficient to justify the court’s refusal of them.

This leaves for our consideration only charges 3 and 62, which'are, respectively, as follows: 3. “If from the evidence you have a doubt of the defendant’s guilt, and such a doubt as in the graver affairs and transactions of life would cause a reasonable and prudent man to pause and hesitate, then such a doubt arnsing from the evidence is a reasonable doubt, and you should acquit the defendant.” 62. “If on fairly considering the testimony your minds have such a doubt of defendant’s guilt as that in the graver affairs of life would cause a prudent and reasonable man to pause and hesitate, then the defendant is not guilty beyond a reasonable.”

The omission of the word “doubt” after the.last word, “reasonable,” in the charge last quoted, is itself sufficient to justify the court’s refusal to give it. But, in our opinion, both these instructions are faulty definitions of a reasonable doubt, and were properly refused. A doubt which would cause a reasonable rnd prudent man to hesitate before accepting a given proposition as true is not necessarily a reasonable doubt. A man of whatever prudence and reason might pause and hesitate and consider because of a doubt as to the propriety or expediency of proposed conduct, though such doubt would not be one for the existence of which a good reason could be given ; and the hesitation to act might well be only for the purpose of considering whether the doubt was substantial and reasonable or chimerical and shadowy, and, the consideration resulting in a conclusion that the intruding doubt was without foundation,he might then proceed to act without any reasonable doubt of the wisdom of his course. Jurors are assumed to be careful and prudent men. In considering a case submitted to them many doubts of guilt may arise which will cause them to pause and hesitate before reaching a verdict. But, if after stopping and thinking over the matter, they conclude that the doubt is unsubstantial and unsupported by any sufficient reason, they can not be said to have entertained a reasonable doubt of guilt. If this were otherwise, jurors would be required to acquit whenever a doubt of guilt arose which would cause them to pause and hesitate for the purpose of considering whether it were a reasonable' doubt or not, and convictions would become well nigh impossible. This seems to us to be quite clear; and the only apparent difficulty in the way of our conclusion that these charges were bad arises from two decisions of this court upon charges given which employ substantially the same language, but along with other statements, as is used in the instructions under consideration. The difficulty, however, is, as we shall undertake to show, more seeming than real. The cases referred to are Welsh v. State, 96 Ala. 92, and Boulaen v. State, 102 Ala. 78. In the former case the trial court, ex mero onotu, charged the jury as follows: “The term ‘reasonable doubt’ means a doubt which has some good reason for it arising out of the evidence in the case — such a doubt as you are able to find in the evidence a reason for. It means such a doubt as would cause a prudent man to pause and hesitate before accepting as true and acting upon any matters alleged or charged in the graver or more important affairs of life. As applied to evidence in criminal cases, it means an actual and substantial doubt, growing out of the unsatisfactory nature of evidence in the case. It does not mean a doubt which arises from some mere whim or vagary, or from any groundless surmise or guess; and, while the law requires you to be satisfied from the evidence of the defendant’s guilt beyond a reasonable doubt, it, at the same time, prohibits you from going outside of the evidence to hunt up doubts upon which to acquit defendant. In arriving at your verdict, it is your duty to carefully and candidly consider the entire evdence in the case, and in so doing you should entertain such doubts only as arise from the evidence and are ‘reasonable,’ as already defined ; and unless the doubt is a reasonable one, and does so arise, it will not be sufficient in law to authorize a verdict of not guilty. Then, gentlemen, if upon a careful and candid review of all the evidence, you ask your inward conscience, ‘Is he the guilty one?’ and the answer is, ‘I doubt if he is,’ you should acquit; but if the answer is, ‘I have no doubt of it,’ you should convict. So then, gentlemen, by a ‘reasonable doubt’ is not meant absolute certainty. There is no such thing as absolute certainty in human affairs ; for justice is, after all, but an approximate science, and its ends are not to be defeated by a failure of strict and mathematical proofs.” The defendant excepted to this part of the oral charge, and we held that it was in accordance with many decisions of this court. In Boulden v. State, 102 Ala. 78, the court, at the request of the solicitor, gave the following charge: “Gentlemen of the jury, I instruct you as a matter of law, that in considering the case, you are not to go beyond the evidence to hunt up doubts, nor must you entertain such doubts as are merely imaginary, or conjectural.' A doubt to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case ; and unless it is such that were the same kind of doubts interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty. If after considering all the evidence, you can say that you have a fixed conviction of the truth of the charge, you are satisfied beyond a reasonable doubt. ’ ’ And the court said it saw no objection to the charge. Two considerations occur to us why the charges refused to defendant in this case do not stand upon the same footing with those parts of the charges in the cases referred to which, considered by themselves, are in effect that a doubt is reasonable which causes a prudent man to pause and hesitate. In the first place the charges given in both Welsh’s and Boulden’s cases contained a complete and sound definition of a reasonable doubt apart from this particular part of them, and these other parts of those instructions so bore upon the declaration that a doubt which would cause a prudent and reasonable man to hesitate and pause was a reasonable doubt, as to render that declaration more of an illustration of the effects of a-reasonable doubt, as defined in other parts of the charge, upon the mind of a prudent man, than a definition of such doubt; it was more in the way of telling the jury how a reasonable doubt would or should. affect such a man, then by way of telling them that such a man so affected by doubt was being influenced by a reasonable doubt. In the seeond place, the defendants in those cases came-to this court complaining of the giving of those charges by the trial courts. If the charges were faulty in the respect under consideration, the infirmity was favorable to the appellants, in that thereby the jury were authorized to acquit them on something less than a. reasonable doubt of their guilt; and hence notwithstanding the infirmity the charges were not open to exceptions by them. In the present case, the declaration stands alone, and hélice cannot be helped by other definitions of a reasonable doubt as it was in the cases cited; and the court was asked to make it by the defendant, so., that it must be passed upon on its merits as an abstract proposition unaided by the fact that the party who excepted to the court’s ruling is not in a position to do so. And standing thus alone on its inherent merits as a definition of a reasonable doubt, we are clear to the conclusion that it is faulty and was properly refused to the defendant. In so far as anything said in the cases of Welsh and BOulden may militate or be supposed to militate against what is here said, they must be modified.

We find no error in the record, and the judgment is affirmed.