Opinion
1 Div. 489.
January 9, 1945. Rehearing Denied February 13, 1945.
Appeal from Circuit Court, Mobile County; D.H. Edington, Judge.
John Fletcher Bringhurst was convicted of manslaughter in the second degree, and he appeals.
Affirmed.
The following charges were refused to defendant:
"(1) The court charges the jury that if there is one single fact proved to the satisfaction of the jury which is inconsistent with the Defendant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit him."
"(4) The court charges the jury that if, upon a consideration of all of the evidence, the minds of the jury, or any member of the jury is left in a state of reasonable doubt and uncertainty, by the evidence, or any part of the evidence, of Defendant's guilt, you cannot convict the Defendant."
"6. The court charges the jury that, if the evidence for the State consists of testimony as to the truth of which the jury may have a reasonable doubt, the jury must not convict the defendant, although they may not believe the testimony of the defendant's witnesses."
"(8) The court charges the jury that before they can convict the Defendant, the evidence must be so strong as to convince each juror of his guilt beyond a reasonable doubt; and, if after considering all the evidence, a single juror has a reasonable doubt of the Defendant's guilt, arising out of any part of the evidence, then they cannot convict him."
"(10) The court charges the jury that if, on a consideration of all the evidence in this case, you find the evidence so nearly balanced that the mere weight of it is on the side of the State, and not so heavy and strong as to satisfy you to a moral certainty that it is true, you cannot find the Defendant guilty."
"C. The court charges the jury that the testimony of a witness for the prosecution, who is shown to be unworthy of credit, is not sufficient to justify a conviction, without corroborating evidence to avail anything must be a fact tending to show the guilt of the defendant."
Gordon Gordon, of Mobile, for appellant.
It is not proper to ask a witness if he did not hear defendant make a statement in certain words, in order to refresh witness' recollection. This is putting words into the mouth of the witness. White v. State, 87 Ala. 24, 5 So. 829. The question whether defendant was under the influence of intoxicating liquor was incompetent and irrelevant and called for the opinion of the witness. Dersis v. Dersis, 210 Ala. 308, 98 So. 27. The question to defendant's wife whether defendant said, when he left, that he was coming home, was improperly allowed. Amos v. State, 96 Ala. 120, 11 So. 424. Asking witness if he can tell when a man is under the influence of intoxicating liquor is not proper method of qualifying witness. Such witness should not be allowed to testify that defendant "was drinking". Charge 1 is a correct one and should have been given. Hubbard v. State, 10 Ala. App. 47, 64 So. 633; Roberson v. State, 175 Ala. 15, 57 So. 829. Refusal of charge 4 was error. Boyd v. State, 150 Ala. 101, 43 So. 204. Charge 8 is a good charge and its refusal was error. Mitchell v. State, 129 Ala. 23, 30 So. 348; Louisville N.R. Co. v. Steverson, 220 Ala. 158, 124 So. 205. It was reversible error to refuse charge 10. Hale v. State, 10 Ala. App. 22, 64 So. 530.
Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
Permitting the solicitor to refresh the recollection of witness who misunderstood previous questions or suffered lapse of memory is not improper. Jackson v. State, 226 Ala. 72, 145 So. 656; Hickman v. State, 12 Ala. App. 22, 67 So. 775; Crane v. State, 111 Ala. 45, 20 So. 590; Grantham v. State, 16 Ala. App. 38, 75 So. 183. It is not improper to allow witness to testify that person was drinking or under the influence of intoxicating liquor. Mealer v. State, 242 Ala. 682, 8 So.2d 178; Birmingham Railway Electric Co., v. Franscomb, 124 Ala. 621, 27 So. 508; National Order v. Lile, 200 Ala. 508, 76 So. 450; American Nat. Ins. Co. v. Rains, 215 Ala. 378, 110 So. 606; Long v. Seigel, 177 Ala. 338, 58 So. 380; Bennett v. Fail, 26 Ala. 605; Dilburn v. Louisville N.R. Co., 156 Ala. 228, 47 So. 210; Stephens v. Williams, 226 Ala. 534, 147 So. 608; Barlow v. Hamilton, 151 Ala. 634, 44 So. 657; Lindsey v. Kindt, 221 Ala. 190, 128 So. 139; Southern R. Co. v. Hobbs, 151 Ala. 335, 43 So. 844; State v. Houston, 78 Ala. 576, 56 Am.Rep. 59; Linnehan v. State, 116 Ala. 471, 22 So. 662; Swain v. State, 8 Ala. App. 26, 62 So. 446. Charge 1 is condemned in later authorities. Ex parte Davis, 184 Ala. 26, 63 So. 1010; McDowell v. State, 238 Ala. 101, 189 So. 183; Wilson v. State, 243 Ala. 1, 8 So.2d 422. Other charges, covered by oral charge, were refused without error.
Undisputedly, at about midnight on a Saturday in November 1943, Mr. Howard Kuntz and Mr. Harris parked the car in which they were traveling on the right-hand side of the highway between Chickasaw and Satsuma in Mobile County, Alabama.
While the said two men were standing on the ground, occupied in making some repairs to their car, another automobile, traveling the same highway, struck and killed both men. The driver of the moving car, without stopping, turned around a short distance up the road, and continued his journey in the direction from whence he came.
Mr. Grantham, a State's witness, was standing near the scene and observed the occurrence, but did not know or recognize the driver of the car which struck the decedents.
Appellant denied that he was the driver or occupant of the car which left the scene. The jury concluded that he was and returned a verdict of guilt — manslaughter in the second degree as charged.
With the exception of Mr. Grantham's testimonial explanation of what he observed at the time of the unfortunate event, the evidence for the State was in the main circumstantial. It would serve no good purpose to analyze the tendencies of the evidence. Suffice it to say that a jury question was presented.
This seems to be the view taken by appellant, as we do not find in brief any insistence to the contrary. The affirmative charge for appellant was correctly refused. Brown v. State, 21 Ala. App. 611, 110 So. 694.
After a State's witness had related the contents of several statements he claimed appellant made, the solicitor was permitted by the court, over appellant's objections, to refresh the recollection of the witness as to the contents of an unrelated statement made on the same occasion. The solicitor made known to the witness and the court that it was for the purpose of refreshing the recollection of the witness and for that purpose solely. It is not unusual for a person to fail to remember at a later time everything that was said by one with whom he was conversing. The primary court was exercising his discretionary privilege and not abusing it in allowing the question to be answered. Moulton v. State, 19 Ala. App. 446, 98 So. 709; Glenn v. State, 157 Ala. 12, 47 So. 1034; Lantern v. State, 1 Ala. App. 31, 55 So. 1032; Jackson v. State, 226 Ala. 72, 145 So. 656.
The solicitor was interrogating a witness as to whether or not appellant was intoxicated. A question: "Did he walk straight?" The answer: "Well, none too straight, no sir." The lower court overruled appellant's motion to exclude the above answer. The position taken was that the answer was not responsive to the question. When we take into account the inquiry to which the question was directed, it is apparent that the witness was answering in the negative, and it was therefore a responsive reply. Pittman v. State, 18 Ala. App. 447, 93 So. 42.
In answer to the question, "Was Mr. Bringhurst under the influence of intoxicating liquors at the time he left there?" a witness said, "Well, he drank a bottle of beer and that is all I know." If it could be said that there was not sufficient proof of the qualification of the witness, touching her knowledge of the subject of the query, no harm inured to appellant on this ground. The answer was a statement of facts and not opinion. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
Before resting its case and without objections, the State introduced in evidence a written statement made by the defendant to the officers. This instrument contained a detailed narration of the places appellant claimed he visited during the Saturday night the two men were killed on the highway. The written document disclosed that he did not spend the night at home. On cross-examination, defendant's wife testified that her husband left home Saturday afternoon and did not return until the next day. Against objections of appellant, the lady was required by the court to answer this question: "When he left he said he was coming back home, didn't he?" We find no difficulty in reaching the conclusion that the wide latitude allowed on cross-examination permitted this inquiry. Thomas v. State, 18 Ala. App. 314, 92 So. 241; Marker v. State, 20 Ala. App. 260, 101 So. 355.
Appellant's counsel moved to exclude the answer of a State's witness that appellant "was drinking", on the ground: "he never stated he was under the influence of anything."
The witness had, according to his testimony, been observing, for four years or more, people who were drinking intoxicating liquors. It is well recognized that in the use of the word "drinking", as applied to the instant inquiry, it is intended to convey the information of a lesser degree of intoxication than "drunk". Jones on Evidence, Sec. 360; May v. State, 167 Ala. 36, 52 So. 602.
Charge numbered one was refused without error. This charge was held to be proper and its refusal error in the earlier cases of our appellate courts: Walker v. State, 153 Ala. 31, 45 So. 640; Simmons v. State, 158 Ala. 8, 48 So. 606; Kirkwood v. State, 3 Ala. App. 15, 57 So. 504; Hubbard v. State, 10 Ala. App. 47, 64 So. 633. This holding has been departed from, however, in more recent cases: Gilbreath v. State, 23 Ala. App. 579, 129 So. 312; Carter v. State, 219 Ala. 670, 123 So. 50; Ex parte Davis, 184 Ala. 26, 63 So. 1010; Pippin v. State, 197 Ala. 613, 73 So. 340; Anderson v. State, 19 Ala. App. 120, 96 So. 634, Certiorari Denied 209 Ala. 489, 96 So. 636; McDowell v. State, 238 Ala. 101, 189 So. 183; Wilson v. State, 243 Ala. 1, 8 So.2d 422.
Charge No. 3 was covered by the court's oral charge.
Charge No. 4 was condemned as bad in Gilbreath v. State, 23 Ala. App. 579, 129 So. 312.
Charge No. 6 was properly refused in the case at bar. Jones v. State, 21 Ala. App. 234, 109 So. 189; Baxley v. State, 18 Ala. App. 277, 90 So. 434, Certiorari Denied 206 Ala. 698, 90 So. 925. As was observed in Baxley v. State, supra, the cases in which the charge is approved, the State's evidence depended upon the testimony of only one witness.
Refused Charge No. 7 has been declared by our courts to be a correct statement of the law: Cory v. State, 22 Ala. App. 341, 115 So. 700; Miller v. State, 24 Ala. App. 552, 137 So. 781; Smith v. State, 28 Ala. App. 506, 189 So. 86. In the instant case, however, we are of the opinion that the principles of law stated in said charge were covered by the court in his oral charge. In different language to be sure, but in more favorable verbiage to appellant than the charge in question seeks to convey.
Refused Charge No. 8 and charges similar thereto have had frequent consideration by this court and the Supreme Court. As we interpret the authorities, we are of the opinion that the refusal of this charge was proper. The identical charge was approved in Mitchell v. State, 129 Ala. 23, 30 So. 348, and its refusal caused a reversal of the case.
In the case of Jones v. State, 20 Ala. App. 660, 104 So. 771, a charge appears in the following language: "Each and every one of you is entitled to his own conception as to what constitutes a reasonable doubt of the guilt of the defendant, and, before you can convict this defendant, the evidence must be so strong that it convinces each juror of the defendant's guilt beyond all reasonable doubt, and if, after a consideration of all the evidence, a single juror has a reasonable doubt of defendant's guilt, then you cannot find him guilty."
On review, Jones v. State, 213 Ala. 390, 104 So. 773, the Supreme Court with reference to the charge just quoted above, held: "The Court of Appeals was of opinion that the refusal of this charge constituted reversible error. Our judgment is that the charge was preperly refused for two separate reasons: (1) It lays too great stress on the individual views of jurors, thus tending strongly to discourage that free consultation after which a jury of twelve may be expected to reach an agreement on matters severely contested; and (2) it permits each juror to define a reasonable doubt according to his individual, it may be idiosyncratic, view, whereas the definition of reasonable doubt, to what extent it may require or admit of definition, is a matter for the court."
It appears to us clearly that the above criticism of the charge in the Jones case, supra, reaches and explains the vice of the charge in the instant case.
This court has consistently followed the holding in the Jones case, supra, in subsequent opinions: Powell v. State, 20 Ala. App. 606, 104 So. 551; Shaw v. State, 21 Ala. App. 156, 106 So. 685; Brasher v. State, 21 Ala. App. 255, 107 So. 230; Merrell v. State, 21 Ala. App. 38, 104 So. 881; Smith v. State, 25 Ala. App. 445, 148 So. 336; Lathem v. State, 21 Ala. App. 489, 109 So. 521.
There is no error apparent from the refusal of Charge No. 10. It is confusing, neither is it free from misleading tendencies.
Refused charge lettered (C) is abstract, if not otherwise faulty.
It is ordered, therefore, that the judgment of conviction be and the same is affirmed.
Affirmed.