Bailey v. State
| Decision Date | 30 June 1924 |
| Docket Number | 3 Div. 670. |
| Parties | BAILEY v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied Oct. 16, 1924.
Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.
Clarence Bailey was convicted of murder in the first degree, and he appeals. Affirmed.
Lee & Graves, of Montgomery, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
The trial was had on indictment for murder in the first degree and the death penalty was imposed by the verdict of the jury in due form.
The decision in Ex parte State ex rel. Davis, Atty. Gen. (Brown v. State), 206 Ala. 546, 90 So. 278, was merely an exposition of the effect of the specific provisions of the statute under consideration. Gen. Acts 1915, p. 30, § 29 1/2. See Underhill on Crim. Ev. (2d Ed.) p. 823, § 510. The provisions of section 7089 of the Code of 1907, prescribing the punishment, were set up in count 2 of the indictment on which the trial was had, and are different from the provisions of the statute considered in Brown v. State, supra. The necessity for, or sufficiency of, the second count of the indictment, is not presented, as the indictment was not challenged by demurrer. The verdict of the jury was:
"We the jury find the defendant guilty of murder in the first degree as charged in the indictment and fix as his punishment that he suffer death."
It is provided by the statute that any convict sentenced to imprisonment for life, "who commits murder in the first degree while such sentence remains in force against him, must, on conviction, suffer death." Code 1907, § 7089. This statute is not offensive to any clause of the state or federal Constitutions. The statute cannot be held offensive to organic law as class legislation. Williams v. State, 130 Ala. 31, 30 So. 336; Singleton v. State, 71 Miss. 782, 16 So. 295, 42 Am. St. Rep. 488; Brown v. State, 50 Tex. Cr. R. 114, 95 S.W. 1039; People v. Hong Ah Duck, 61 Cal. 387; People v. Majors, 65 Cal. 138, 3 P. 597, 52 Am. Rep. 295; State v. Connell, 49 Mo. 282; Kennedy v. Howard, 74 Ind. 87. It is not ex post facto. 24 L. R. A. (N. S.) 433, note. It does not impose cruel and unusual punishment, nor does it inflict double punishment or put the accused twice in jeopardy. Borck v. State (Ala. Sup.) 39 So. 580; Underhill on Crim. Ev. (2d Ed.) pp. 819, 820, §§ 506, 507.
Mr. Justice Gray, speaking for the Supreme Court of the United States, says of such statutes.
McDonald v. Commonwealth of Mass., 180 U.S. 311, 313, 21 S.Ct. 389, 390, 45 L.Ed. 542, 547.
The imposition of punishment, under the oral instructions of the court, giving in charge to the jury the provisions of section 7089 of the Code of 1907, violated no right guaranteed to the defendant under the state or federal Constitutions.
A question worthy of consideration was reserved on introduction of state's evidence. It was of the nature of the evidence introduced by the state, against the objection of the defendant, to prove the facts necessary to give application of section 7089 of the Code.
It is unnecessary to decide the several questions so reserved as to the manner of proof of defendant's former conviction for murder and of his sentence to the penitentiary for life. The fact that while serving that sentence the instant murder was committed by defendant was incumbent upon the state to prove by competent legal evidence.
The defendant as a witness testified:
"That he was serving a life sentence for killing Francis Stutters in 1920, and that he killed him with a knife, and they were both in the penitentiary at the time,...
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