Benton v. State

• Decision Date: 11 January 1944
• Docket Number: 4 Div. 789.
• Citation: 31 Ala.App. 338,18 So.2d 423
• Parties: BENTON v. STATE.
• Court: Alabama Court of Appeals

18 So.2d 423

31 Ala.App. 338

BENTON v. STATE.

4 Div. 789.

Alabama Court of Appeals

January 11, 1944

Rehearing Denied March 21, 1944.

Appeal from Circuit Court, Covington County; Robt. S. Reid Judge.

Certiorari denied by Supreme Court in Benton v State, 4 Div. 332, 18 So.2d 428.

In substance defendant's pleas in abatement and motion to quash are that the circuit solicitor, whose name is signed officially to the indictment, was a nephew of the deceased that the alleged or supposed special solicitor, deputy solicitor for Geneva County appointed by the circuit solicitor, was before the grand jury at its sitting or investigation at the time this indictment was found, and evidence was taken in his presence; that said special solicitor took no oath as such; that both the circuit solicitor and special solicitor were interested in the prosecution of defendant; that the circuit solicitor had not recused or disqualified himself to act, and the special solicitor was unauthorized to participate in the proceedings of the grand jury.

Powell & Fuller and Whaley & Whaley, all of Andalusia, and Lee & Lee, of Dothan, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

RICE, Judge.

Code 1940, Title 15, Section 389, by which we are governed, is in the following language: "In cases taken to the supreme court or court of appeals under the provisions of this chapter (on Appeals etc.), no assignment of errors or joinder in errors is necessary; but the court must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant." (Italics supplied by us).

Appellant, here, was indicted for the offense of murder in the first degree, tried, and convicted of the offense of manslaughter in the first degree. His punishment was fixed at imprisonment in the penitentiary for the term of nine years.

We do not see the necessity of an extended discussion of the testimony. Appellant admitted that he shot Charles W. Mizell with a pistol and killed him. As his counsel state: "So far as the State's testimony goes the shooting was unprovoked and without a motive." We might add that said State's testimony-a part of it, at least-makes out against appellant a most aggravated case of murder in the first degree.

His own testimony, however, corroborated to an extent, indicates that he was not guilty by reason of having fired in self-defense-as that term was clearly defined to the jury.

Upon the trial he pleaded not guilty, and not guilty by reason of insanity. The issues thus raised were explicitly and elaborately defined to the jury; and left to them for their decision.

We have endeavored to comply fully with the terms of the Code section quoted at the beginning of this opinion. We think we have done so.

In the nature of things, it would not be worth while to here separately discuss every single ruling underlying every single exception reserved or received on the trial. For example, the large number of requested written charges refused to appellant may all be disposed of by the single simple statement that we have carefully examined the learned trial court's able and comprehensive oral charge to the jury, in connection with the some thirty-eight written charges given to the jury at his request. In our opinion-and we hold-the charges so given to the jury covered and included, correctly, or more favorably to appellant than was his due, every principle of the law possibly applicable to the issues on the trial. This rendered it unnecessary to give and without error to refuse any of the written requested charges so endorsed in the record. In fact, appellant's able counsel, in their two elaborate briefs filed here, do not contend otherwise.

Concerning another large number of exceptions we may, as has counsel for appellant, pass them over as unworthy of detailed treatment. It will suffice to say that we have carefully examined them, and that it is our opinion that in the rulings underlying same there appears no error prejudicial to any right of appellant's. Our remarks here will be confined to those rulings made the basis of exceptions which are argued and discussed by the counsel in their respective briefs.

The pertinent part of Section 278 of Title 15 of the Code of 1940 reads as follows, to wit: "No objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and no objection can be taken to an indictment by plea in abatement except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same * * *."

Section 46 of Title 30 of the Code of 1940 provides as follows, to wit: "No objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors."

Measuring appellant's pleas in abatement to the indictment, and his motion to quash the venire for his trial, by the law as we have quoted in the next two preceding paragraphs, it is at once apparent that the trial court did not err in sustaining the State's demurrers to his pleas, and its motion to strike his motion to quash. The matters he sets up in his pleas, and in his motion, do not come up to the requirements requisite to their sustention. Hall v. State, 134 Ala. 90, 32 So. 750; Kinnebrew v. State, 132 Ala. 8, 31 So. 567; Jones v. State, 150 Ala. 54, 43 So. 179; Blevins v. State, 68 Ala. 92; Cross v. State, 78 Ala. 430; Wimbush v. State, 237 Ala. 153, 186 So. 145; Reynolds v. State, 27 Ala.App. 590, 176 So. 816.

It is well understood that the signature of the Solicitor is no part of the indictment proper; and that mere irregularities in filling the jury box do not render the venire void. Ala. & So. Dig., Indictment and Information, + 33; Bell v. Terry, 213 Ala. 160, 104 So. 336.

It appearing that the bullets from appellant's pistol pierced the clothing of deceased, said clothing was introduced in evidence before the jury without error. Smith v. State, 183 Ala. 10, 62 So. 864; Rollings v. State, 160 Ala. 82, 49 So. 329; Watkins v. State, 89 Ala. 82, 8 So. 134; Letson v. State, 215 Ala. 229, 110 So. 21; Hyche v. State, 217 Ala. 114, 114 So. 906. The holding in the case of Boyette v. State, 215 Ala. 472, 110 So. 812, of course is without application here.

Deceased being admittedly shot by appellant with a pistol, we find no fault with the admission into the evidence of appellant's pistol-taken from him a short time after the shooting. Powe v. State, 214 Ala. 91, 106 So. 503.

It is of course the law that while a non-expert witness can give an opinion as to the sanity or insanity of a person, yet for him to give his opinion that a person is insane he must show a continuous acquaintance with him of such intimacy as will enable him to form an accurate and truthworthy opinion as to his mental condition. And that whether a non-expert is shown to have the qualifications sufficient to authorize him to give an opinion whether another person is insane is a question addressed to the court in the exercise of a sound discretion, and not reviewable on appeal, except for palpable abuse. Jones v. State, 181 Ala. 63, 61 So. 434; Russell v. State, 17 Ala.App. 436, 87 So. 221, certiorari denied In parte Russell, 204 Ala. 626, 87 So. 227; Bass v. State, 219 Ala. 282, 122 So. 45.

In the light of the contents of the last next preceding paragraph hereof, we do not find, after careful examination, that any ruling on the admission or rejection of testimony concerning appellant's mental condition at the time of the fatal rencountre, to which exception was reserved, requires revision here. This last statement applies equally to the refusal of the trial court to admit into the evidence the documents concerning appellant's admission into and his discharge from the Alabama Insane Hospitals; said admission and discharge being under the provisions of Code 1940, Title 15, Section 425, and occurring long after the shooting of deceased by appellant, and the documents concerning same tending in no way to indicate appellant's insanity at the time of said shooting.

In the opinion in the case of Pruitt v. State, 92 Ala. 41, 9 So. 406, our Supreme Court said: "Whatever rule may prevail in other states or countries, it is settled law in this state, that where a witness has been examined in a criminal trial, and cross-examined, or the opportunity afforded for cross-examination, by the party charged, and the witness dies, or becomes insane, or has gone beyond the jurisdiction of the state permanently, or for such an indefinite time that his return is merely contingent or conjectural, the testimony of such witness may be proven on a subsequent trial." The same principle is well stated in the opinions in the following additional cases, to wit: Lucas v. State, 96 Ala. 51, 11 So. 216; Jacobi v. State, 133 Ala. 1, 32 So. 158, certiorari denied 187 U.S. 133, 23 S.Ct. 48, 47 L.Ed. 106; Percy v. State, 125 Ala. 52, 27 So. 844; Sims v. State, 139 Ala. 74, 36 So. 138, 101 Am.St. Rep. 17; Burton v. State, 107 Ala. 68, 18 So. 240; Woodward v. State, 21 Ala.App. 417, 109 So. 119, 120.

As Presiding Judge Bricken expressed it for this court in Woodward v. State, supra: "The generally accepted rule appears to be that if for any reason it is impossible to produce the witness and have him testify in the subsequent proceedings, the evidence of such witness, given at a former trial or examination between the same parties, may be introduced."

In view of...