Albright v. State

• Decision Date: 20 March 1973
• Docket Number: 1 Div. 338
• Parties: Robert Raymond ALBRIGHT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 186

280 So.2d 186

50 Ala.App. 480

Robert Raymond ALBRIGHT v. STATE.

1 Div. 338.

Court of Criminal Appeals of Alabama.

March 20, 1973.

Rehearing Denied May 29, 1973.

David L. Barnett, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Jr., Asst. Atty. Gen., for the State.

HARRIS, Judge.

On December 9, 1971, the Grand Jury of Mobile County returned an indictment charging appellant with murder in the first degree. On December 29 the trial court appointed counsel to represent and defend him and upon being arraigned, appellant interposed a not guilty plea with leave to file special pleas within thirty days. Counsel for appellant filed a demurrer to the indictment and also a motion to quash the indictment on identical grounds. The court overruled the demurrer and denied the motion to quash.

On April 25, 1972, the trial began with a struck jury under appellant's not guilty plea. After the state had put on three (3) witnesses, appellant with his counsel made known to the court that he desired to change his not guilty plea and plead guilty to the indictment. After ascertaining that appellant fully understood all of his constitutional rights under the Constitution and laws of Alabama, the Constitution of the United States, and specifically his rights spelled out in Boykin, and that his decision to plead guilty was intelligently, understandingly and voluntarily made the court accepted the guilty plea, and, without the intervention of the jury trying the case, sentenced appellant to imprisonment in the penitentiary for life.

Under Headrick v. State, 46 Ala.App. 202, 239 So.2d 572, we are compelled to reverse. Cf. Spencer v. State, 48 Ala.App. 646, 266 So.2d 902. After jeopardy attaches and a criminal trial is underway, there is no longer a field of operation for Title 15, Section 277, Code of Alabama 1940. This case should have been submitted to the jury under instructions from the court as to the sentence that could legally be imposed.

There is a much more serious problem presented by the record that has gone unnoticed by appellant and the state and that is the sufficiency of the indictment when tested by apt demurrer even in face of a guilty plea.

This is a five count indictment and, omitting the formal parts, are as follows:

'The GRAND JURY of said County charge, that, before the finding of this indictment ROBERT RAYMOND ALBRIGHT whose name is to the Grand Jury otherwise unknown than as stated, unlawfully, and with malice aforethought, killed Edward Chandler Williams, an infant child by exposing him to the cold and weather, against the peace and dignity of the State of Alabama.

'Ct I The Grand Jury of said County further charge, that, before the finding of this indictment ROBERT RAYMOND ALBRIGHT, whose name is to the Grand Jury otherwise unknown than as stated, unlawfully and with malice aforethought, killed Edward Chandler Williams, by want of care and attention, and by abandoning him, and refusing to care for and protect him, against the peace and dignity of the State of Alabama.

'Ct II The Grand Jury of said County further charge, that, before the finding of this indictment ROBERT RAYMOND ALBRIGHT, whose name is to the Grand Jury otherwise unknown than as stated, unlawfully and with malice aforethought, killed Edward Chandler Williams, an infant child, by abandoning him on the side of a public road in the nighttime wilfully (sic) permitting him to be exposed to the elements, against the peace and dignity of the State of Alabama.

'Ct IV The Grand Jury of said County further charge, that, before the finding of this indictment ROBERT RAYMOND ALBRIGHT, whose name is to the Grand Jury otherwise unknown than as stated, unlawfully, and with malice aforethought, killed Edward Chandler Williams, an infant child, by abandoning said infant on the side of a public road, refusing to care for him and refusing to protect him, and wilfully (sic) permitting him to be exposed to the elements, against the peace and dignity of the State of Alabama.

'Ct V The Grand Jury of said County further charge, that, before the finding of this indictment ROBERT RAYMOND ALBRIGHT, whose name is to the Grand Jury otherwise unknown than as stated, unlawfully, and with malice aforethought, killed an infant child, whose name is to the Grand Jury otherwise unknown, by abandoning said infant on the side of a public road, refusing to care for him and refusing to protect him, and wilfully (sic) permitting him to be exposed to the elements, against the peace and dignity of the State of Alabama.'

At common law it was necessary to set forth in an indictment for murder the Means by which an offense was committed. Hornsby v. State, 94 Ala. 55, 10 So. 522, 525; Cozart v. State, 42 Ala.App. 535, 171 So.2d 77. The requirements of the common law as to averments of the means by which a homicide is committed has been retained under our statutory procedure. Title 15, § 241 and § 242, Code of Alabama 1940. Wilson v. State, 243 Ala. 1, 8 So.2d 422.

While the means with which a homicide is committed is not a constituent element of the offense, the omission to aver the means employed, though a defect of substance, and not one of form, is such a defect as must be taken advantage of by demurrer. Gaines v. State, 146 Ala. 16, 41 So. 865; Huckabee v. State, 159 Ala. 45, 48 So. 796. Where the means is unknown it is proper to allege in the indictment 'by some means to the grand jury unknown'. Eatman v. State, 139 Ala. 67, 36 So. 16; McDonald v. State, 241 Ala. 172, 1 So.2d 658.

Title 15, § 259, Code of Alabama 1940, form 79, is prescribed for murder in the first degree:

'A.B. unlawfully, and with malice aforethought, killed C.D., by shooting him with a gun or pistol, etc. (or by striking him with an iron weight, or by throwing him from the top of a house, or by pushing him into the river, whereby he was drowned, etc., as the case may be).' (emphasis added)

It is crystal clear that this form in each instance states the Quo modo of the use of the instrument causing death.

Leaving out the means of homicide is a demurrable defect. Cozart v. State supra; Langham v. State, 243 Ala. 564, 11 So.2d 131.

In neither count of this indictment is the Quo modo or the means of causing death of the infant child set forth. The means by which the homicide was perpetrated is inferential and speculative. The whole matter covering the cause of death could have been obviated by an averment that appellant unlawfully and with malice aforethought killed the named infant by some 'means were to the grand jury unknown'. McDonald v. State, 241 Ala. 172, 1 So.2d 658; Bradfield v. State, 258 Ala. 638, 64 So.2d 890.

The law of homicide growing out of the abandonment of an infant child is stated in Pallis v. State, 123 Ala. 12, 26 So. 339. The facts in Pallis, supra, tended to show that the defendant placed her new-born baby on the side of a public road in a sand bed, without any clothing or wrapping of any kind upon it, and left it there covered with straw and leaves. The next day the child was found in an almost dying condition, and was carried to a physician, who, by stimulants, revived it and restored its circulation.

The trial court in its general charge to the jury instructed it as follows:

'If you believe from the evidence, beyond a reasonable doubt, that the defendant, in Conecuh County in this State, after giving birth to the child in question, abandoned it in the public road or street, in the night, without clothes or covering, exposed to the elements and such other dangers as might beset it, and that she intended thereby to accomplish the death of the child, she would be guilty of an assault with intent to murder.'

The Supreme Court said:

'It seems to be well settled, that where a parent having charge of an infant of tender years, abandons and exposes it to the inclemency of the weather, such parent is guilty of an assault. If physical detriment ensue from such exposure, it is a battery on the child. Russ. Crimes, p. 1021, § 1022; 2 Bish.New Cr.Law, §§ 29, 33(2), 72(3), 660(1).

"If the exposure or neglect of an infant or other dependent person, resulting in death is an act of mere carelessness, wherein danger to life does not clearly appear, the homicide is only manslaughter; whereas, if the exposure or neglect is of a dangerous kind, it is murder. For example, if from an...