In Scott v. State, 211 Ala. 270, 100 So. 211, the trial court refused to give at appellant's request the following charge: "4. If you believe from the evidence that the defendant had no intent to kill the deceased at the time she was shot, he could not be convicted of murder in either degree, nor of manslaughter in the first degree."Summary of this case from Gautney v. State
6 Div. 903.
April 10, 1924. Rehearing Denied May 15, 1924.
Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.
Kenneth C. Charlton, of Birmingham, for appellant.
The venire should have been quashed and a continuance granted. Haisten v. State, 5 Ala. App. 56, 59 So. 361; Dickerman v. Northern Trust Co., 176 U.S. 181, 20 Sup. Ct. 311, 44 L.Ed. 423; Walker v. State, 117 Ala. 85, 23 So. 670; Knowles v. Blue, 209 Ala. 27, 95 So. 481.
Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen., for the State.
There was no error in drawing venire. Linggold v. State, 10 Ala. App. 57, 65 So. 304; Acts 1909, p. 317, § 29; Milligan v. State, 208 Ala. 223, 94 So. 171. Defendant's confession was properly admitted. Braham v. State, 143 Ala. 28, 38 So. 919; Strickland v. State, 151 Ala. 31, 44 So. 90; Smith v. State, 142 Ala. 14, 39 So. 329; Jones v. State, 156 Ala. 175, 47 So. 100. Defendant may not prove good character by showing he has never been convicted of a crime involving moral turpitude. Patton v. State, 199 Ala. 180, 72 So. 401; James v. State, 14 Ala. App. 652, 72 So. 299; Charge 4 was bad. Anderson v. State, 18 Ala. App. 429, 93 So. 68.
An indictment for murder may identify the deceased by different names in separate counts, without an allegation that the name is otherwise unknown. Such indictment is not subject to demurrer for misjoinder. Ex parte State, 197 Ala. 419, 73 So. 35; Lowe v. State, 134 Ala. 154, 32 So. 273; Wooster v. State, 55 Ala. 217.
The order setting day for trial and for the special venire was made on September 23d. The trial was set for October 2d. Motions to quash the venire and for a continuance of the cause made the point that the order was not made on the first day of the term of the court, nor as soon thereafter as practicable. The statute says:
"Whenever any person or persons stand indicted for a capital felony, the court must on the first day of the term, or as soon as practicable thereafter make an order commanding the sheriff to summon," etc. Acts 1919, pp. 1039, 1041.
This act is amendatory of section 32, Acts 1909, p. 319, which contained the above-quoted provision. The original act provided that the venire for the trial of the cause should include the jurors "drawn and summoned" for the week of the court the trial was set. The same statute provided for drawing of the regular jury only for the first week of the court prior to the beginning of the term of court. Acts 1909, § 15, p. 310.
In Harris v. State, 172 Ala. 413, 55 So. 609, we pointed out the impracticability of complying with these provisions of the statute when capital cases are set for a later week of the term.
The act of 1919, supra, struck out the word "summoned," thus making the regular jurors "drawn" for the week of the trial a part of the venire for the capital case. The effect was to make practicable the drawing of the regular jury and the special venire on the same day. The other provisions of the original statute remain, and the amended statute must be construed in connection therewith.
Section 29, Acts of 1909, p. 317, reads:
"It is hereby expressly declared to be the intent of the Legislature in the enactment of this law, to make the provisions hereof in the relation to the selection, drawing, summoning or impaneling of jurors directory merely and not mandatory. The jurors selected, drawn, summoned and impaneled under the provisions of this act, whether at an earlier or later day than required by this act, must and shall in all respects be deemed legal, and to possess in full, in every respect, power to perform all of the duties belonging to grand and petit jurors. And no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors."
The requirement that jurors in capital cases be drawn the first day of the term evinces a legislative purpose for a prompt trial of these grave offenses. Behind it is the thought that swift and sure punishment makes the law a greater terror to evildoers, and that the law's delay encourages crime. The accused has also the constitutional right to a "speedy, public trial, by an impartial jury of the county or district in which the offense was committed." Const. 1901, § 6.
The right of the state or the defendant to move the court to set down the cause and draw the jury at the earliest practical date, and the remedy for abuse of discretion in failing so to do, are not questions now before us. It is safe to say the statute does. not contemplate that such delay shall be ground for quashing a venire or continuing the cause, thus entailing further delay which the statute aims to avoid.
"As soon as practicable thereafter" must, in the nature of things, be determined by the trial judge, as a matter of judicial discretion. It appears in the case at bar that the presiding judge of the tenth circuit had ordered no capital causes set for trial prior to October 2d, because of a vast number of appealed cases and jail cases. Conditions may be such that the judges, seeking to administer the law in the most effective way, find it best to deal with conditions which may lead to the commission of the graver crimes.
Like motions were made on the ground that a list of the jurors and a copy of the indictment were not served on the defendant "forthwith," as required by the statute. Acts 1919, p. 1041. The list of jurors and copy of indictment were served four days after they were drawn and five days before the day set for trial. The court "must cause" the list of jurors and copy of indictment to be "forthwith served." It does not appear that any motion was made or the court's attention otherwise called to the delay until presented by motions to continue and to quash the venire. This was no ground to quash the venire. The court did not abuse his discretion in refusing a postponement or continuance. Harris v. State, 203 Ala. 200, 82 So. 450; Savage v. State, 174 Ala. 94, 57 So. 469; Cain v. State, 16 Ala. App. 303, 77 So. 453.
State witness Cunningham, a deputy sheriff, testified to a conversation with defendant in jail. As a predicate, the witness said:
"I did not offer him any violence or hope of reward, and did not tell him it would be better for him if he made a statement or worse if he did not make a statement, and no one in my presence or hearing did any of these things." That nobody threatened him or offered him violence or abuse in any way.
He then testified:
"I asked him why he shot Mary, and he said he didn't know unless it was the devil in him."
The court did not err in admitting this evidence as a voluntary confession. McQueen v. State, 94 Ala. 50, 10 So. 433; White v. State, 133 Ala. 122, 32 So. 139; Hamilton v. State, 147 Ala. 110, 41 So. 940; Burton v. State, 107 Ala. 108, 18 So. 284; Crain v. State, 166 Ala. 1, 52 So. 31.
When a confession is admitted in evidence by the court, it is not within the province of the jury to inquire into its competency. Their only duty is to determine its credibility and effect. They cannot reject it as inadmissible. Charge 22, requested for defendant, was therefore properly refused. Washington v. State, 53 Ala. 29; Curry v. State, 203 Ala. 239, 82 So. 489; 4 Michie's Dig. p. 326, § 490 (2); 16 C. J. 1003, § 2421.
The good character of defendant cannot be proven by specific acts of merit, nor by evidence that he has never been convicted of crime. Patton v. State, 197 Ala. 180, 72 So. 401; James v. State, 14 Ala. App. 652, 72 So. 299; Cauley v. State, 92 Ala. 71, 9 So. 456; 4 Michie's Dig. p. 157, § 230; note, 14 L.R.A. (N.S.) 691; Underhill on Crim. Ev. § 245.
The purpose and probative effect of proof of good character of defendant was properly defined in the court's oral charge. Armor v. State, 63 Ala. 173; Hussey v. State, 87 Ala. 121, 6 So. 420; note, 20 L.R.A. 614.
"Any person who is guilty of murder in the second degree must, on conviction, be imprisoned in the penitentiary for not less than ten years, at the discretion of the jury." The discretion of the jury as to the term of imprisonment is subject to no other limitation than that it shall be not less than ten years. They may, when in their opinion the facts require it, fix the punishment on a conviction of murder in the second degree at imprisonment for life. The court's oral charge to that effect was free from error. Miller v. State, 54 Ala. 155; Paine v. State, 89 Ala. 27, 8 So. 133.
The rule for the consideration of the testimony of a witness whose testimony is found to be willfully and corruptly false on a material issue was correctly defined in the oral charge of the court. Cunningham v. State, 14 Ala. App. 1, 69 So. 982.
The intentional firing of a pistol at the person of another, whereby death ensues, may be murder or manslaughter in the first degree, although there was no intent to kill, but merely to frighten the deceased. The intentional doing of an act so greatly dangerous to human life may supply all the legal elements of intent, however free the action may be from actual purpose to kill. Charge No. 4 was properly refused. Bailey v. State, 133 Ala. 155, 32 So. 57; Fowler v. State, 161 Ala. 1, 49 So. 788; Lewis v. State, 96 Ala. 6, 11 So. 259, 38 Am. St. Rep. 75; Lawson v. State, 155 Ala. 44, 46 So. 259; 29 C. J. p. 1295, § 69, page 1119, § 106, page 1128, § 116.
The court's oral charge correctly and fully stated the law on all phases of the case. We have examined other refused charges, and find that, so far as they are correct statements of the law of the case, they were covered by the oral charge or given charges. A detailed discussion is not deemed helpful.
We find no reversible error in other rulings upon evidence.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.