Opinion
12-18-1913
Ex parte DAVIS et al.
W.W. Quarles and Reese & Reese, all of Selma, and Hill, Hill, Whiting & Stern, of Montgomery, for appellants. R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.
Certiorari to Court of Appeals.
Petition by Yancey Davis and another for certiorari to review the ruling of the Court of Appeals in the case of Davis v. State (62 So. 1027) affirming the judgment of the trial court. Writ denied.
The verdict in the trial court was, "We, the jury, find defendant guilty of manslaughter in the first degree, and fix as their punishment five years in the penitentiary." The trial court refused to give at the request of defendant the following charge: "If there is one single fact proved to the satisfaction of the jury which is inconsistent with defendant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit." The Court of Appeals held the verdict good, and that the charge was covered by other written charges given at defendant's request, which rendered its refusal error without injury.
W.W. Quarles and Reese & Reese, all of Selma, and Hill, Hill, Whiting & Stern, of Montgomery, for appellants.
R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.
SOMERVILLE, J.
We concur in the view of the Court of Appeals that the verdict was valid in form and in substance, and that it very clearly is not within the influence of the decision in Perry v. State, 149 Ala. 41, 43 So. 18.
Pretermitting any consideration of the merit of the view that the refusal of the [63 So. 1011.] charge in question could be treated as error without injury, we entertain no doubt as to the impropriety of the charge, and hold that it was properly refused. It has been repeatedly condemned as invasive of the province of the jury, and also as misleading. Walker v. State, 117 Ala. 42, 23 So. 149; Morris v. State, 27 So. 336 (imperfectly reported in 124 Ala. 46); Moss v. State, 152 Ala. 30, 36, 44 So. 598; Campbell v. State, 62 So. 57 (headnote 12); McClain v. State, 62 So. 241 (headnote 8).
In Walker v. State, 153 Ala. 31, 45 So. 640, it was held error to refuse such a charge, entirely overlooking the three previous rulings to the contrary; and Walker's Case, 153 Ala. 31, 45 So. 640, was followed without comment in Simmons v. State, 158 Ala. 8, 48 So. 606; and also in Roberson v. State, 175 Ala. 15, 57 So. 829.
It results that Walker's Case, 153 Ala. 31, 45 So. 640 (headnote 8), Simmons' Case (headnote 10), and Roberson's Case (headnote 4), must be and are expressly overruled; and the ruling in Walker's Case, 117 Ala. 42, 23 So. 149 (headnote 12), is again declared to be correct and authoritative.
Writ denied. All the Justices concur.