Chastain v. State

54 So. 2d 628, 256 Ala. 111, 1951 Ala. LEXIS 89

• Court: Supreme Court of Alabama
• Decided: June 28, 1951
• Docket: 7 Div. 113
• Status: Published

Opinions

To the Honorable, The Court of Appeals of Alabama

Judicial Building

Montgomery, Alabama

Dear Sirs:

The Court of Appeals under the provisions of § 88, Title 13, Code of 1940 has certified for our answer the following:

“The Judges of this court are in disagreement and 'unable to reach an unanimous conclusion’ as to certain controlling questions in the case of George Harrison Chastain v. State, from Etowah Circuit Court, now pending in this court.

“Our court has under consideration in this case the following written charge:

“ ‘18. I charge you gentlemen of the jury that the absence of sufficiently satisfying evidence before the jury may offer grounds for a reasonable doubt of the defendant’s guilt, in which event you would acquit the defendant.’

“The Supreme Court in Carwile v. State, 148 Ala. 576, 39 So. 220, held that charge 8 was good and should have been given. Charge 8 was as follows:

“ ‘The absence of sufficient satisfying evidence before the jury may offer ground for reasonable doubt of the defendant’s guilt.’

“In Griffin v. State, 150 Ala. 49, 43 So. 197, 199, the Supreme Court by McClellan, Jr., observed:

“ ‘Refused charge numbered 22 is as follows: “The absence of sufficiently satisfying evidence before the jury may offer ground for reasonable doubt of defendant’s guilt.” This charge was well refused, since it substitutes the word “offer” for the word “afford.” The writer is of the opinion that, if correctly worded, the charge should have been refused, because, among other reasons, it is indefinite and uncertain, in that it does not hypothesize of what the jury must be “sufficiently satisfied,” and, besides, assumes the absence of evidence.’

“In the case of Gaston v. State, Í61 Ala. 37, 49 So. 876, 878, the charge under consideration was:

“ ‘(21) I charge you that the absence of sufficiently satisfying evidence may be a ground for reasonable doubt of defendant’s guilt.’ (Italics ours.)

“McClellan, Jr., again speaking for the court, held:

“ ‘Charge 21 has been approved as charge 8 in Carwile’s Case, 148 Ala. [576], 585, 39 So. 220.’

“In attempting to reconcile these authorities, the Judges of our court have disagreed and therefore, as authorized by law, the following abstract question is hereby certified to your court for an opinion as guidance to our -court in said cause, towit:

“1. Does the charge under consideration state a correct proposition of law?”

Charge 18 does not state a correct proposition of law. We agree with the writer of the opinion in Griffin v. State, 150 Ala. 49, 43 So. 197, when he said: “it is indefinite and uncertain, in that it does not hypothesize of what the jury must be 'sufficiently satisfied,’ and, besides, assumes the absence of evidence.”

LIVINGSTON, C. J., and BROWN and FOSTER, JJ., concur. LAWSON and SIMPSON, JJ., dissent.