“[I]f the alibi is established, a perfect defense has been shown. Perhaps more importantly, if any reasonable doubt exists as to the presence of the defendant at the scene of the crime at the time the offense was committed (if such presence is necessary to commit the crime), the defendant must also be acquitted.”
How later courts described this case
- “[I]f the alibi is established, a perfect defense has been shown. Perhaps more importantly, if any reasonable doubt exists as to the presence of the defendant at the scene of the crime at the time the offense was committed (if such presence is necessary to commit the crime), the defendant must also be acquitted.”
- unanimous jury verdicts in criminal cases
- opinion by T.G. Kavanagh, C.J.
- opinion by Kavanagh, C.J.
Written by the judges who cited it.
The opinion
Williams, J.
(concurring in the result). My Brother Kavanagh, in Section II of his opinion, concludes that no instruction on the requirement of a unanimous verdict was given to the jury in this case. He further resolves that the failure to give an instruction on unanimity does not constitute reversible error inasmuch as trial counsel did not object, and moreover, specifically declined to have the jury polled.
I agree that Burden’s conviction should stand, but rely on somewhat different reasons. First, I *470 think that the jury was sufficiently advised of the requirement of a unanimous verdict. The trial court included in the jury instruction the following language:
"Now, so that in our system we say, we don’t say he is guilty, or we don’t say he is innocent because if we did there wouldn’t be anything for you to do. We say we presume you innocent until you are proven guilty to the satisfaction of each juror and beyond a reasonable doubt, so it is a presumption.” (Emphasis added.)
This language expressed the core idea of the unanimity requirement.
Second, in announcing their verdict, the jury answered in the affirmative the following question by the clerk:
"Members of the jury rise and raise your right hand over your heart and hearken to the verdict as recorded to this court, you say upon your oaths you find the defendant, Jimmy Burden, guilty of robbery unarmed, so say you, Mr. Foreman, so say you all members of the jury?” (Emphasis added.)
In other words, there was a unanimous verdict in this case.
Finally, trial defense counsel specifically rejected an invitation to have the jury polled.
In the absence of these factors, I would have difficulty concluding, with Chief Justice Kavanagh, that defendant had received a fair trial where no instruction was given to the jury on the defendant’s principal theory of the case, and where the jury was not given an instruction on the requirement of a unanimous guilty verdict, even in the absence of a request for instructions on these matters from defense counsel.