Chavers v. State

• Decision Date: 07 April 1978
• Citation: 361 So.2d 1106
• Parties: Ex parte James Chavers, Jr. In re James CHAVERS, Jr. v. STATE of Alabama. SC 77-55.
• Court: Alabama Supreme Court

Page 1106

361 So.2d 1106

Ex parte James Chavers, Jr. In re James CHAVERS, Jr. v. STATE of Alabama.

SC 77-55.

Supreme Court of Alabama.

April 7, 1978.

Rehearing Denied Aug. 4, 1978.

L. Drew Redden and William N. Clark of Rogers, Howard, Redden & Mills, Birmingham, for petitioner.

William J. Baxley, Atty. Gen., Montgomery, and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for respondent.

MADDOX, Justice.

Petitioner, James Chavers, Jr., seeks to review the opinion of the Court of Criminal Appeals, 361 So.2d 1096 which upheld the trial court's refusal to give the following requested charges on lesser included offenses of murder:

"CHARGE NO. 24

"The Court instructs the jury that manslaughter in the second degree is included in the charge against the defendant.

"CHARGE NO. 26

"The Court instructs the jury that if you believe from the evidence in the case, beyond all reasonable doubt and to a moral certainty, that the defendant killed the deceased without malice, either expressed or implied, and without intent to kill or inflict the injury causing death, while committing an unlawful act or while committing a lawful act in an improper or negligent manner, he would be guilty of manslaughter in the second degree."

The Court of Criminal Appeals determined that both charges were properly refused because the evidence adduced at trial failed to warrant any instruction on second degree manslaughter. We reverse and remand.

As indicated by Bookout, J., who dissented, there was evidence given by the defendant that the shooting was unintentional and accidental. In fact, the majority opinion indicates that there was such evidence introduced because the opinion states: "The only evidence presented at trial indicating the shooting was unintentional and accidental came from the lips of the defendant."

An individual accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position. Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973). A court may properly refuse to charge on lesser included offenses only (1) when it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) when the requested charge would have a tendency to mislead or confuse the jury. Lami v. State, 43 Ala.App. 108, 180 So.2d 279 (1965). In fact, our decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however, weak, insufficient, or doubtful in credibility. Burns v. State, 229 Ala. 68, 155 So. 561 (1934).

Was there any evidence presented that the killing was unintentional and accidental? Yes. The majority opinion indicates that there was. Therefore, the refusal to charge on lesser included offenses cannot be upheld on this ground.

Would the requested charges on lesser included offenses tend to mislead or confuse the jury? The answer to this question is more difficult. Charge No. 24 merely states that manslaughter in the second degree is included in the charge against the defendant. It neither defines the offense, nor is it based upon a consideration of the evidence. Why would it be error to refuse such a charge? Chavers says because the failure to give a similar charge has worked a reversal in the past. He cites Howard v. State, 41 Ala.App. 360, 132 So.2d 384 (1961). Howard is apt authority, but only because, in Howard, Cates, J., felt bound by Stare decisis. There, the court said:

"While these charges fail to define the offense and are not based on a consideration of the evidence, nevertheless stare decisis compels us to consider them as correct in form. Judge Carr quoted the Duncan charge illustratively in Carter v. State, 31 Ala.App. 526, 19 So.2d 361. The formula, 'a charge of assault with intent to murder includes a charge of assault and battery,' was approved in Stovall v. State, 34 Ala.App. 610, 612, 42 So.2d 636. See Kelly v. State, 235 Ala. 5, 176 So. 807."

In Lami v. State, 43 Ala.App. 108, 180 So.2d 279 (1965), Cert. denied, 278 Ala. 710, 180 So.2d 282, the Court of Appeals held:

"Ordinarily, a charge that an indictment includes a lesser offense, when there is added to it the further instruction that the jury has authority to find the defendant guilty of the lesser offense, should be refused unless (1) the charge defines the offense, (2) is based on a consideration of all the evidence, and (3) sets out the degree of proof necessary to establish the offenses."

Nevertheless, in Lami, the court again cited the rule that a simple charge which states that lesser offenses are included in an indictment should be given when the evidence so warrants. However, in Lami, the court found that the two charges on lesser included offenses requested in that case had a tendency to mislead the jury because one used an expression "may find" and the other used "can find."

Howard, following precedent, reversed the failure to give the simple charge on lesser included offenses, but Howard did not Approve the charge. On the contrary, Howard criticized the charge and the prior precedents. In Lami, the court again pointed out what requested charges on lesser included offenses should contain. This court denied certiorari in Lami.

Because of the failure of the trial judge to give requested charge No. 24, and the trial court's refusal to charge on second degree manslaughter ¹ we think...