Brewington v. State
| Decision Date | 30 June 1923 |
| Docket Number | 8 Div. 83. |
| Citation | 97 So. 763,19 Ala.App. 409 |
| Parties | BREWINGTON v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Stricken Oct. 16, 1923.
Appeal from Circuit Court, Lawrence County; Osceola Kyle, Judge.
Herman Brewington was convicted of manslaughter in the first degree and appeals. Reversed and remanded.
Robert Almon, of Moulton, and Callahan & Harris, of Decatur, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
The defendant insists he is entitled to a reversal of the judgment because the record proper fails to show a special venire drawn, summoned, and served on defendant as in capital cases made and provided, or a waiver thereof entered of record, as is required by section 7264 of the Code of 1907.
An indictment for murder in the first degree embraces charges of all the lesser degrees of homicide, as well as certain crimes of a lesser degree. A conviction of a lesser degree of crime is an acquittal of all the higher degrees of the crime covered by the indictment. This court has consistently held that, where the conviction is for a lower degree of the crime charged in the indictment, rulings of the court affecting and relating solely to the higher crime, of which, by a conviction for the lesser, the defendant was acquitted would, if error, be without injury under Supreme Court rule 45 (61 South. ix). Rigell v. State, 8 Ala. App. 46 62 So. 977; Lee v. State, 16 Ala. App. 53, 75 So. 282; Bolin v. State, 11 Ala. App. 35, 65 So. 433; 8 Mich. Dig. 394, par. 271.
The rulings in the cases supra were on charges and evidence, but in Leonard v. State, 18 Ala. App. 427, 93 So. 56, the same rule was applied to pleading, and in Andrews v. State, 17 Ala. App. 456, 85 So. 840, to qualification of jurors for the trial of the case. We see no good reason for not applying the rule here. It is only in capital cases that a special venire is required to be drawn. If the indictment had been drawn in four counts, charging the various degrees of homicide, the state could have entered a nol pros. as to the count charging the highest degree, and proceeded to trial on the remaining counts. In that event defendant would not be entitled to a special venire. The defendant was tried and convicted by a jury duly and legally authorized to try and determine the guilt of the defendant on the charge of which he was convicted under the indictment presented and to which he pleaded. The judgment therefore is a bar to any further proceedings, and is in effect an acquittal of the charge of murder. If the conviction had been for murder in the first degree, and the court's rulings were error, the defendant could complain, but we fail to see how, in this case, he is injured.
There are certain charges appearing in the record proper, preceded by a statement of the clerk that such charges were requested by the defendant and refused by the court, but none of these charges are so indorsed as required by Acts 1915, p. 815. We cannot consider them. Wimberly v. State, 204 Ala. 629, 86 So. 900; Sharpley v. State, 18 Ala. App. 620, 93 So. 210; Neely v. State, 18 Ala. App. 565, 93 So. 382.
The court, during the delivery of its oral charge, said:
"But, if you find that he [defendant] could have retreated in safety to himself, without having to take the life of Fred Ayers, then, gentlemen, this defendant cannot invoke self-defense."
In reserving exception to the court's oral charge, the defendant excepted to the following as being parts of the charge:
"If you find that the defendant could have retreated in safety to himself, then he cannot invoke the doctrine of self-defense,"-and "if you find that he [the defendant] had an open and safe way of retreat to safety, he cannot invoke the doctrine of self-defense."
Under the ruling in the case of Ex parte Cowart, 201 Ala. 55, 77 So. 349, we are constrained to hold that these exceptions were sufficient to direct the attention of the trial judge to the part of the charge, and to designate with sufficient certainty the principle of law announced therein to which exception was taken.
It is true that afterwards in the oral charge and in a different connection the court stated the correct rule of self-defense as applicable to this case, which did not require retreat on the part of defendant, but nowhere in...
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...are a number of appellate courts which agree with the decision of the majority. See Green v. United States, supra; Brewington v. State, 19 Ala.App. 409, 97 So. 763 (1923); Hearn v. State, 212 Ark. 360, 205 S.W.2d 477 (1947); Gomez v. Superior Court, 50 Cal.2d 640, 328 P.2d 976 (1958); State......
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Thigpen v. State
...Ala. 425, 179 So. 217, is here controlling.' We find this authority determinative under the facts of this case. See also Brewington v. State, 19 Ala.App. 409, 97 So. 763, where we find the following pertinent '. . . This court has consistently held that, where the conviction is for a lower ......
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