Etheridge v. State

• Decision Date: 21 July 1904
• Citation: 141 Ala. 29,37 So. 337
• Parties: ETHERIDGE v. STATE.
• Court: Alabama Supreme Court

37 So. 337

141 Ala. 29

ETHERIDGE v. STATE.

Supreme Court of Alabama

July 21, 1904

Appeal from Circuit Court, Bullock County; A. A. Evans, Judge.

Alex Etheridge was convicted of manslaughter, and he appeals. Reversed.

Dowdell J., dissenting in part.

The indictment was in words and figures as follows: "The grand jury of said county charge that before the finding of this indictment, Alex Etheridge, unlawfully and with malice but without deliberation or premeditation, killed Lewis Calhoun, by cutting him with a knife, against the peace and dignity of the state of Alabama." To this indictment defendant demurred upon the grounds that it fails to charge any offense known to the laws of Alabama, and that it fails to charge that defendant killed Lewis Calhoun with malice aforethought. This demurrer was overruled. The defendant requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give said charge as asked: "The burden of proof is upon the state to prove to the jury from the evidence beyond a reasonable doubt that the defendant was not free from fault in bringing on the difficulty before the defendant will be precluded from invoking the doctrine of self-defense."

Ernest L. Blue, for appellant.

Massey Wilson, Atty. Gen., for the State.

DOWDELL J.

The malice which is an essential element in the offense of murder has always been described as "malice aforethought." It is descriptive of the state of the mind of the slayer preceding and at the instant of the unlawful act of the killing. Although, for the existence of the malice, no definite or appreciable space of time in law is required to be shown, yet it must be "aforethought"; that is it must be related to the unlawful act in the nature of cause and effect. In Ward's Case, 96 Ala. 100, 11 So. 217 where it was held that the indictment was unobjectionable as charging murder in the second degree, the averment in the indictment was that the killing was done "unlawfully and with malice aforethought, but without deliberation or premeditation," etc. In the case before us the indictment omits the word "aforethought" after "malice." No special form for indictment for murder in the second degree is prescribed in our Code forms, but the one given for murder in the first degree (Cr. Code 1896, p. 333, form No. 63), in describing the malice required to be averred, describes it as "malice aforethought."...