In Edwards v. State, 205 Ala. 160, 87 So. 179, 180, the Supreme Court (speaking through the late Justice Somerville) said: "It is difficult to understand why a defendant would wish to have the jury instructed that, 'if there is a probability of defendant's innocence, you must find the defendant not guilty,' when he is entitled to an instruction that he must be acquitted unless shown to be guilty beyond any reasonable doubt — a requirement far more rigorous against the state and far more favorable to the defendant."Summary of this case from Newman v. State
1 Div. 135.
December 2, 1920. Rehearing Denied January 6, 1921.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Webb, McAlpine Grove, of Mobile, for appellant.
Court was in error in organization of the jury. 12 Ala. App. 237, 67 So. 768; Jury Law, Acts 1919. Court erred in refusing to give charges 4 and 8. 117 Ala. 138, 23 So. 138: 175 Ala. 8, 57 So. 592; 150 Ala. 19, 43 So. 219; 125 Ala. 80, 28 So. 390; 120 Ala. 360, 25 So. 236; 14 So. 409. Counsel discuss other assignments of error, but without further citation of authority.
J. Q. Smith, Atty. Gen., and Bart. B. Chamberlain, Sol., of Mobile, for the State.
The objections to the jury should have been raised at the time and comes too late on appeal. 196 Ala. 539, 72 So. 64; 94 Ala. 74, 10 So. 432; 108 Ala. 571, 18 So. 813; 88 Ala. 73, 7 So. 52. It is not necessary that the record show that the jurors last summoned were outside the five-mile limit. 81 Ala. 35, 1 So. 18; 74 Ala. 478; 72 Ala. 5; 69 Ala. 159; 22 Ala. 9, 58 Am. Dec. 234. Court properly refused charge 2. 182 Ala. 81, 62 So. 241; 16 Ala. App. 10, 74 So. 846; 4 Ala. App. 29, 58 So. 814. The court properly refused charge 8. 124 Ala. 8, 26 So. 977; 107 Ala. 13, 18 So. 229; 106 Ala. 52, 18 So. 492.
The order of the court should have directed a venire "including those drawn on the regular juries for the week," and not "those drawn and summoned." In this particular the former requirement was changed by the act of September 29, 1919 (Gen. Acts 1919, p. 1041). Walker v. State, 204 Ala. 474, 85 So. 787.
However, no objection was made to the irregularity of the order, and it does not appear that the constitution of the special venire was affected thereby. Defendant had the number of veniremen specified in the order, and, for aught that appears, the 42 regular veniremen who were drawn and summoned included all who were drawn.
With respect to such irregularities, objection must be seasonably made, and prejudice must be made to appear, or they are not available for reversal of a judgment of conviction on appeal. Waldrop v. State, 185 Ala. 20, 64 So. 80; Walker v. State, 204 Ala. 474, 85 So. 787.
It is suggested that the special venire must be held illegal because the record does not specifically show, with respect to the six additional names drawn in court, that those persons were not within, or did not live within, five miles of the courthouse, or within the corporate limits of the city wherein the court was held, as prescribed by the Jury Law (Gen. Acts 1919, p. 1041). Such a showing is not necessary. The record shows that the veniremen selected were duly qualified, and it will be presumed that they were qualified in this respect as well as in all others, in the absence of a proper showing to the contrary.
We are not to be understood as holding that the defendant can complain of irregularity merely because such additional veniremen are brought in from territory outside the limits prescribed. On the contrary, it would seem that that provision is directory only, to serve the convenience of the court by avoiding delays in executing the process and bringing in the required veniremen, and not mandatory in any sense.
While a verdict ought to be evidenced by a written return signed by the foreman, and such is the uniform practice, it was held a long time ago that the formality of a writing was not necessary to give validity and effect to a verdict. State v. Underwood, 2 Ala. 744. But, even if a written verdict was necessary, it would be presumed that it was in writing; the contrary not appearing from the record.
Neither of the written statements made and signed respectively by defendant's associates, Charley and Dulaney, appear in the bill of exceptions, nor is there any recital as to their contents. It appears, however, that they were offered and read in evidence, and seasonably objected to by defendant. We cannot presume that they contained any illegal matter which was prejudicial to defendant. Chief O'Shaughnessy had already testified to oral statements made by those men in defendant's presence, which accused defendant of firing the shot that killed deceased, and no objection was made to that testimony. In this state of the record, error cannot be imputed to the admission of the written statements.
There was no prejudicial error, if any, in refusing to give charges 4 and 8 to the jury as requested by defendant. It is difficult to understand why a defendant would wish to have the jury instructed that, "if there is a probability of defendant's innocence, you must find the defendant not guilty," when he is entitled to an instruction that he must be acquitted unless shown to be guilty beyond any reasonable doubt — a requirement far more rigorous against the state and far more favorable to the defendant. See Bain v. State, 74 Ala. 38. Charge 4 was, however, technically bad in not hypothesizing a probability of innocence founded upon the evidence in the case (Davis v. State, 188 Ala. 59, 66 So. 67, but in any case its refusal was not prejudicial in view of the full and favorable instructions given to the jury at defendant's request, and covering every aspect of the burden and sufficiency of proof for conviction.
The same reasons justify or render harmless the refusal of charge 8. Criticizing the language of that charge, we do not think that such a phrase as the "mere preponderance of probabilities" ought to have any place in an instruction to a jury. It is unnecessary, and is more apt to confuse than to enlighten.
The evidence of defendant's guilt was too overwhelming to permit of any other verdict than the one rendered, however the trial court might have ruled on the matters complained of, and the judgment of conviction must be affirmed.
All the Justices concur.