Opinion
5 Div. 778.
April 22, 1930.
Appeal from Circuit Court, Lee County; W. B. Bowling, Judge.
Matt Bufford was convicted of manslaughter in the first degree, and he appeals.
Reversed and remanded.
The following charges were refused to defendant:
"10. The Court charges the jury that if after looking at all the evidence in this case and considering it fully, your minds are left in such a state of uncertainty that you cannot say beyond a reasonable doubt that the defendant is guilty of the offense charged, then this is such a doubt as would entitle the defendant to an acquittal, and you should so find.
"11. The Court charges the jury that if they are not satisfied beyond a reasonable doubt, to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the guilt of the defendant, then they should find him not guilty; and it is not necessary, to raise a reasonable doubt, that the jury should find from all the evidence a probability of defendant's innocence, but such a doubt may arise, even when there is no probability of his innocence in the testimony, and, if the jury have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to acquit him."
"13. The court charges the jury that if there is from the evidence a reasonable probability of defendant's innocence, the jury should acquit the defendant."
"33. The Court charges the jury that the burden is on the State to show, and it is the duty of the State to show beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis every circumstance necessary to show that the defendant is guilty; and, unless the State has done that in this case, it is your duty, gentlemen of the jury, to render a verdict of not guilty."
"36. The Court charges the jury that the innocence of defendant is presumed until his guilt is established by the evidence in all the material aspects of the case beyond a reasonable doubt, to a moral certainty, and it may also be said that evidence of guilt must be strong and cogent, and, unless it is so strong and cogent as to show that the defendant is guilty to a moral certainty, defendant should be acquitted."
Samford Samford and Jacob A. Walker, all of Opelika, and Richard H. Cocke, of Alexander City, for appellant.
The trial court erred in refusing the affirmative charge for defendant. People v. Holtz, 294 Ill. 143, 128 N.E. 341; Barnett v. State, 21 Ala. App. 646, 111 So. 318; Anderson v. State, 19 Ala. App. 606, 99 So. 778. The state failed to make out its case beyond a reasonable doubt, and defendant's motion for a new trial should have been granted. Code 1923, § 9518; Furst v. Shows, 217 Ala. 297, 116 So. 149; People v. Holtz, supra; Anderson v. State, supra. It was error to refuse defendant's special charges: (Charge 10) Gilbert v. State, 20 Ala. App. 565, 104 So. 45; (charge 11) Olden v. State, 176 Ala. 6, 58 So. 307; (charge 33) Veasey v. State, 20 Ala. App. 478, 103 So. 67; (charge 36) Davis v. State, 8 Ala. App. 147, 62 So. 1027; (charge 13) Davis v. State, 7 Ala. App. 122, 61 So. 483.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
From a judgment of conviction for manslaughter in the first degree and sentence to imprisonment in the penitentiary for the term of one year and one day, this appeal was taken.
Defendant demurred to the indictment as follows: "(1) The indictment charges that the defendant killed the deceased with a gun, or pistol, without alleging with which weapon. (2) The indictment does not allege with sufficient particularity with what weapon the defendant killed the deceased. (3) The indictment alleges in the disjunctive the weapon with which the defendant killed the deceased."
Mere reference to the statute, and to the form of indictment in the Code 1923, is a full answer to the insistence of appellant in this connection. Sections 4544 and 4556, form 76, of the Code 1923. The demurrers were properly overruled.
The deceased named in the indictment, Luther Bufford, was the son of the accused, and the evidence without dispute disclosed that he came to his death as a result of certain bullet wounds upon his person.
The evidence in this case was circumstantial, and upon the trial there was no evidence showing, or tending to show any motive upon the part of the accused to take the life of his own son. To the contrary, it was disclosed without dispute that the relations of this father and son were cordial, affectionate, and normal.
In homicide cases, the question of motive is not indispensable to a conviction, nor is it an element of the burden of proof resting on the prosecution; but it is always a legitimate subject of inquiry on the trial of one charged with crime, and, though the evidence tending to show motive is weak and inconclusive, nevertheless it is admissible. Motive is an inferential fact to be drawn by the jury from the evidence, and must be proved as a fact, not as hearsay. Likewise it is permissible for the defense to offer proof of facts showing or tending to show that no motive for the commission of the offense complained of existed.
Numerous exceptions were reserved to the court's rulings upon the admission of evidence, and each of them will have our consideration as the law requires. We note, how ever, that the refusal by the court to give the affirmative charge for defendant, as well as the refusal of certain other written charges, also the overruling of the motion for new trial, are relied upon principally for a reversal of the judgment of conviction.
The prevailing rule as to the refusal of an affirmative charge justified the trial court in declining to direct a verdict for defendant in this case, and rendered the refusal of this charge without error. The rule is, the general or affirmative charge should never be given when there is any evidence, however weak and inconclusive it may be, tending to make a case against the party who asks it. Pellum v. State, 89 Ala. 28, 32, 8 So. 83; Lee v. State, 18 Ala. App. 566, 93 So. 59; Anderson v. State, 18 Ala. App. 585, 93 So. 279; Suttle v. State, 19 Ala. App. 198, 96 So. 90; Harrison v. State, 21 Ala. App. 260, 107 So. 225.
The numerous charges refused to defendant on the question of character appear to properly state the law; yet in this case these charges are not in point, there being no evidence as to the good character of defendant adduced upon this trial. Each of these charges was therefore abstract. In the absence of all evidence as to character, there is no presumption of law on that question. The court properly refused each of the charges upon this question.
The oral charge of the court was clear and explicit, and to the extent of the charge was well expressed. But we find in the record numerous special written charges, refused to defendant, which should have been given and to which he was entitled.
Refused charge 10 should have been given. Gilbert v. State, 20 Ala. App. 565, 104 So. 45; Elmore v. State, 92 Ala. 51, 9 So. 600.
Charge 11 properly stated the law. This charge has been fully approved in the cases of Olden v. State, 176 Ala. 6, 58 So. 307; Bailey v. State, 168 Ala. 4, 53 So. 296, 390.
Under authority of Gainey v. State, 141 Ala. 73, 37 So. 355, and cases cited, charge numbered 13, refused to defendant, should have been given.
Refused charge 33 states correct propositions of law applicable to this case. The defendant was entitled to this instruction. Veasey v. State, 20 Ala. App. 478, 103 So. 67; Brown v. State, 118 Ala. 111, 23 So. 81.
It was error also to refuse charge 36. Davis v. State, 8 Ala. App. 147, 162, 62 So. 1027; Salm v. State, 89 Ala. 56, 8 So. 66; Gilmore v. State, 99 Ala. 154, 13 So. 536; McCoy v. State, 170 Ala. 10, 54 So. 428; Bailey v. State, 168 Ala. 4, 53 So. 296, 390; Rosenberg v. State, 5 Ala. App. 196, 59 So. 366, 367.
Numerous other charges properly stating the law were refused. Many of these charges could well have been given, as they were not fairly and substantially covered by the oral charge of the court or by given charges.
We are of the opinion that the court should have granted defendant's motion for a new trial.
Reversed and remanded.