Clemmons v. State

• Decision Date: 13 March 1928
• Docket Number: 8 Div. 689
• Citation: 116 So. 910,22 Ala.App. 418
• Parties: CLEMMONS v. STATE.
• Court: Alabama Court of Appeals

116 So. 910

22 Ala.App. 418

CLEMMONS v. STATE.

8 Div. 689

Court of Appeals of Alabama

March 13, 1928

Rehearing Denied April 3, 1928

Appeal from Circuit Court, Morgan County; James E. Horton, Judge.

Pat Clemmons was convicted of murder in the second degree, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Clemmons v. State, 116 So. 913.

W.W Callahan, of Decatur, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

The indictment in this case charged this appellant with the offense of murder in the first degree; the specific charge being that he unlawfully and with malice aforethought killed Carter Stanford by hitting him with a brick or stone, etc. The jury returned a verdict of guilty of murder in the second degree, and fixed the punishment at imprisonment in the penitentiary for a term of 20 years. Sentence was accordingly pronounced, and judgment of conviction rendered, from which this appeal was taken.

On the trial it was developed by the undisputed evidence that Carter Stanford was killed by having been hit with a brick by this defendant. The defendant relied upon self-defense for his justification of the act complained of. We find the evidence as to the attending facts and circumstances of the killing to be in sharp conflict, thereby making a jury question.

Appellant complains of several rulings of the court pending the trial. Exceptions were duly reserved in connection with these rulings, but it is apparent, from the insistences in brief of able counsel for appellant, that the exceptions reserved to the oral charge of the court are relied upon mainly to effect a reversal of the judgment of conviction appealed from; this in connection also with the refusal of certain written charges bearing upon the same question.

The first exception noted, as to the oral charge, was to an excerpt thereof, wherein the court, in defining to the jury the offense of murder in the second degree, among other things stated:

"It is not necessary that in order for a man to be guilty of murder in the second degree that there was a killing intended."

In considering this as well as other exceptions to the oral charge, we must have regard for the charge as a whole. In other words, the general charge of the court must be considered and construed as a whole, and in connection with the evidence, and if, when so construed it asserts a correct proposition applicable to the evidence, a disconnected part or sentence is not a reversible error, although it may not express all the necessary constituents of the offense. Furthermore, the oral charge must be taken and construed in connection with the given charges which are also a part of the law in a case.

In connection with the above-quoted excerpt, the court in the oral charge continued and said:

"If one with malice aforethought, either expressed or implied, willfully and unlawfully inflicts an injury upon or to the person of another which causes death, and which death would not have occurred but for such injury so inflicted, if the person inflicting such injury is guilty, such person is guilty of murder in the second degree. The act, gentlemen must be an intentional act, but, if the act is done willfully, if it is done intentionally, and if it is done unlawfully, and if the injury causes death, then, gentlemen, that is murder in the second degree."

The oral charge on this subject continues as follows:

"If done with malice and willfully and unlawfully, directly putting the life of another human being in jeopardy and does that intentionally, and if from that intentional act, thus done, death results to the other party, then, gentlemen, a man would be guilty of murder in the second degree, although he may not have actually intended that death should have been the actual result.

"You understand, gentlemen, the act must be willful and intentional, and it must be done with all of these other elements. But the law does say this much, that you cannot with malice, willfully and intentionally do an act knowing it--you see that your act is putting another's life in jeopardy and then by that intentional act the man is killed, say that you did not intend to kill that person."

We are of the opinion that the foregoing is in line with the following authorities:

Nutt v. State, 63 Ala. 180 (Stone, J.):

"Murder in the second degree may be committed without an intention to take life. Mere words, no matter how insulting, never reduce a homicide to manslaughter. So, if one strike another, not in self-defense, with intent to maim him, and death ensue, or, if one, in the attempt to commit a felony, kill another without intending it--in either case, he is guilty of murder in the second degree."

In McKee v. State, 82 Ala. 32, 2 So. 451 (Stone, C.J.), in discussing charge 25, to wit:

"If the jury believe, from the evidence, that the defendant did not mean then to voluntarily deprive the deceased of life, by striking him with the hand spike then he cannot be guilty of anything more than manslaughter in the first degree,"

--the court said:

"Charge 25 is erroneous as a legal proposition. Aside from the presumption that every one is held accountable for the natural and probable consequences of his acts intentionally done (McManus v. State, 36 Ala. 285), many murders are committed without actual intention to kill. Deaths, even when not thought of, ensuing from an attempt to maim, or from an attempt to commit any other felony, are examples of this kind of murder."

In Lewis v. State, 96 Ala. 6, 11 So. 259, 38 Am.St.Rep. 75, a case in many respects identical with the case at bar, where the homicide was committed, as here, by the throwing of a brick or brickbat, charge 22 was as follows:

"If the jury is not satisfied beyond a reasonable doubt that, when the defendant threw the piece of brick, he threw it with malice, and intended to kill Henry Lovelace, they must acquit him."

McClellan, J., for the court, said:

"It was not controverted that the defendant intentionally threw, or 'pitched,' the brick which produced death, at the deceased. Whether he intended to kill deceased or not, that result is chargeable to his voluntary act."

Bailey v. State, 133 Ala. 155, 32 So. 57 (Dowdell, J.):

"It was not necessary, to constitute murder in the second degree, for which the defendant was on trial, that he should have the specific intention to kill, at the time he fired the gun."

Rector v. State, 11 Ala.App. 333, 347, 66 So. 857, 862 (Brown, J.):

"Under the indictment in this case, the defendant was subject to conviction of any of the degrees of felonious homicide other than murder in the first degree [the indictment charging murder in the second degree]. Although he may not have intended to kill the deceased, if he intentionally committed upon him an assault which in its nature was calculated to produce death and as a result thereof death ensued, he would be guilty."

Appellant cites the case of Davis v. State, 214 Ala. 273, 107 So. 737. So far as that case is applicable to the point of discussion here,...