Morgan v. State , 20 Ala. App. 331 ( 1924 )

Charge A refused to the defendant is invasive of the province of the jury, the weight, sufficiency of evidence, and conclusions of fact are for the jury, and charges such as charge A are covered by charges that instruct the jury that, in order to support a verdict of guilt, the jury must so find from the evidence beyond a reasonable doubt. Such charge was several times given both in the oral charge and in written charges given at the request of defendant. Charge E is argumentative.

Charge 4 was condemned by this court in Du Bose v. State,19 Ala. App. 630, 99 So. 746, on authority of Davis v. State,188 Ala. 59, 66 So. 67, and Edwards v. State, 205 Ala. 160,87 So. 179.

Charge 8 has many times been condemned by this court and the Supreme Court, and charge 9 pretermits a consideration of the whole evidence.

Charge 12 is bad. 1 Mayfield Dig. p. 177 (258).

Charge 14 is covered by given charge 3.

Refused charge 19 was fairly and substantially given in given charge 28, and in the oral charge.

The principles of law set out in refused charges 20 to 29, both inclusive, where correctly stated, were fairly and substantially given in written charges 15, 16, and 17, and in the oral charge of the court.

The fact that Mary Ruth Morgan, one of defendant's witnesses, had attended the Tuskegee Institute could not be of prejudice to defendant, nor did such a question tend to arouse race prejudice.

The court did not err in excluding from the jury the statement of defendant, that after killing deceased, "I went on down and give up." This was no part of the res gestæ, and no rule is better known than that a defendant may not, after the commission of the act charged, make evidence for himself.

Evidence of the bad character of the deceased as being a dangerous blood-thirsty man was relevant to illustrate the circumstances attending the homicide, and to qualify, explain, and give meaning and point to any threats made by deceased against defendant. Eiland v. State, 52 Ala. 322. But that defendant had heard that deceased had difficulties with other parties is hearsay and inadmissible. Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422.

Motion of the solicitor to exclude the statement of defendant that, "At the time he started his hand in his pocket I was scared of him," was properly granted. A defendant may not make evidence for himself.

The other questions raised upon the admissibility of testimony are clearly without merit. In the instance where the witness was permitted to say that defendant's character was bad among the negroes, the court changed his ruling and so instructed the jury. We do not hold that this ruling was error, but even so it was corrected by the court in an explicit manner.

The mere fact that a slip of paper was found in the jury room after the jury had rendered its verdict, on which appeared the following figures:

15 2 2 10 5 2 H L 2 C 15 25 13 2 5 ---------------------- X 5 — 2 10 2 — 5 10 1 — 10 10 3 — 15 45 1 — 25 25 12 ( 100 ----------- 8 1/3

— is not sufficient evidence upon which to impeach the verdict of the jury. Besides, the evidence on the motion for a new trial was overwhelming to the effect that no such agreement was made, and the figures did not enter into the making of the verdict. We find no error in the record, and the judgment is affirmed.

Affirmed.

On Rehearing. In Tatum v. State (Ala.App.) 100 So. 569,¹ this court treated at length a charge similar to refused charge E. The case at bar is not based upon circumstantial evidence. The evidence showing the homicide is direct and not dependent upon hypotheses based upon proven collateral facts. This distinction is also recognized in Ex parte Bud Hill (Ala. Sup.) 100 So. 315.² Where the evidence tending to connect the defendant with the commission of the crime is circumstantial, charge E would be proper. Where the evidence connecting the defendant with the homicide is direct, as here, the charge is a mere argument and is properly refused. The cases and authorities dealing with this and similar charges are considered and dealt with in the two cases above cited.

Charge 4 was bad as not having been predicated upon all of the evidence. See authorities cited in original opinion. It follows that that part of the opinion in Baker v. State (Ala. Sup.) 97 So. 902,³ approving a similar charge must be overruled and has been expressly overruled on this point. Jeff Rountree v. State, ante, p. 225, 101 So. 325.

Charge 19. — Every substantial right to which the defendant was entitled, is covered by given charge 28. Moreover, the charge is not technically correct, as it assumes, as matter of law, that George Morgan, the defendant, was a reasonable man.

The application for rehearing is overruled.

¹ Ante, p. 24.

² 211 Ala. 311.

³ 19 Ala. App. 437.