Evans v. State
| Decision Date | 19 May 1978 |
| Citation | 361 So.2d 666 |
| Parties | In re John Louis EVANS, III and Wayne Eugene Ritter v. STATE of Alabama. Ex parte John Louis Evans, III and Wayne Eugene Ritter. 77-180. |
| Court | Alabama Supreme Court |
Al Pennington, Mobile, Francis A. Poggi, Jr., Fairhope, for petitioners.
William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen. for the State.
We granted certiorari in this death penalty case to determine whether or not the Alabama Court of Criminal Appeals was correct in its interpretation and application of Alabama's Death Penalty Statute, Act No. 213, Section 2(b), Acts of Alabama 1975, Regular Session, vol. I, p. 701, et seq. (§ 13-11-1 through § 13-11-9, Code 1975).
The facts of this joint appeal are set forth in the opinion of the Court of Criminal Appeals, see John Louis Evans, III, and Wayne Eugene Ritter v. State of Alabama, (1 Div. 837) 361 So.2d 654 (Ala.Cr.App.1977). Briefly, these two petitioners were convicted by a jury in the Circuit Court of Mobile County, Alabama, of the intentional killing of Edward A. Nassar, operator of a Mobile pawnshop, which murder occurred while petitioners were robbing the victim at gunpoint and while Mr. Nassar's young son was looking on. Following a general verdict of guilty "as charged in the indictment" the trial court conducted a hearing on mitigating and aggravating circumstances, in accordance with the mandates of the Act, after which it sentenced each of the petitioners to death.
At every important stage of the case, i. e., before the grand jury, before the petit jury, and before the trial judge, each of the petitioners Requested that he be given The death penalty. Neither of the petitioners indicated that he wished to prosecute an appeal of his conviction. The case is before us because appointed counsel have appeared and filed Amici curiae briefs. Notwithstanding that neither petitioner has expressed dissatisfaction with his conviction nor his death sentence, nevertheless, we have undertaken a review of this case because of the State's dominant and overriding interest in ensuring that the death penalty is imposed only for utmost of compelling legal reasons.
A principal issue raised by petitioners concerns the sufficiency of the indictments to charge offenses under Act 213. We cannot agree that the indictments are insufficient or defective. Specifically, we cannot agree with the dissent that the State Must allege in the indictment that the defendant was engaged in robbery and, while robbing, the victim was intentionally killed, But that the State Cannot allege that the victim was intentionally killed while defendant was engaged in robbing him. We think either allegation sufficiently apprises the defendant of that with which he is charged. To adopt any other rationale, would, we think, constitute a rather narrow construction, neither called for, nor required, in our judgment, by our statutory rules of construction.
Having carefully considered each of the issues raised on petition for writ of certiorari filed by petitioner Evans, we have concluded that there is no merit therein and that the Court of Criminal Appeals' decision ought to be affirmed on the authority of Jacobs v. State, 361 So.2d 640 (Ala.1978, ). Therefore, the judgment of the Court of Criminal Appeals affirming the conviction and sentence of petitioner John Louis Evans, III, is affirmed.
It is specifically argued on petitioner Ritter's behalf that, because he did not fire the weapon causing death, he could neither be charged nor convicted under Act No. 213, since that Act's § 2(b) does not permit intent to be supplied by the "felony-murder doctrine." Amici curiae concede that Ritter could have been charged with felony-murder itself under Tit. 14, § 314, Code of Alabama 1940 (Recompiled 1958) (now § 13-1-70, Code 1975) although for conviction thereunder the death penalty could not be imposed. Because of the probability of merit in this contention and because this contention has not been treated by the Court of Criminal Appeals, we reverse and remand the decision of the Court of Criminal Appeals with respect to petitioner Ritter to that court for consideration of the applicability of the "felony-murder doctrine," under § 2(n), of the Act.
AFFIRMED AS TO PETITIONER EVANS.
JONES and SHORES, JJ., dissent. See views expressed in their dissents in Ex parte Jacobs, 361 So.2d 640 .
REVERSED AND REMANDED AS TO PETITIONER RITTER.
All the Justices concur.
I dissent from the majority decision to affirm Evans' case. I would reverse Evans' case.
My review of this case is premised on general principles governing the review of criminal cases. These principles bear not only longstanding historical importance, but they are well-known to the Bench and Bar of Alabama.
First, criminal statutes are strictly construed in favor of the persons sought to be subjected to their operation, Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, Cert. den. 265 Ala. 700, 90 So.2d 238 (1956), and such statutes reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952). As Mr. Justice Brown stated in Fuller, supra, referring to statutory crimes:
' * * * "A penal statute cannot be extended by implication or construction to cases within the mischief, if they are not at the same time within the terms of the act, fairly and reasonably interpreted." . . .'
Secondly, allegations in an indictment must be sufficiently clear to enable a person of common understanding to know with what offense the indictment charges him. Tit. 15, § 232, Alabama Code (Recomp.1958) (now Code of Ala.1975, § 15-8-25).
The Court of Criminal Appeals has jurisdiction to review a decision in which the death penalty is imposed, §§ 12-3-9, 12-22-131, Code of Ala.1975, and that Court has the duty to examine the entire record to determine whether any error exists prejudicial to the defendant. Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957). The terms of § 12-22-241, Code of Ala.1975, authorizing the appellate court to consider any testimony seriously prejudicial even in the absence of objection, do not limit that duty to the transcript of the evidence. Cf. Lee v. State, supra. Thus the Court of Criminal Appeals was under a duty to examine the legality of the indictments. The Court of Criminal Appeals must notice a fatal defect in the indictment which will not support a judgment notwithstanding the fact that no objection was taken to the indictment in the trial court. Likos v. State, 28 Ala.App. 231, 182 So. 81 (1938).
On Certiorari to the Court of Criminal Appeals, this Court will not review the findings of fact of the Court of Criminal Appeals but will review questions of law, which may include misapplication of law to the facts as found by that Court. Flannagin v. State, 289 Ala. 177, 266 So.2d 643 (1972). The duty of this Court to follow these principles in all cases is clear, regardless of the gravity of the offense charged or the notoriety attendant to it.
Omitting the formal parts, the indictment against Evans reads as follows:
did unlawfully, intentionally and with malice aforethought kill EDWARD A. NASSAR by, to-wit: on January 15, 1977, at a location known as The Pawn Shop, 3225 Springhill Avenue, Mobile County, Alabama, and while the said EDWARD A. NASSAR was an attendant at The Pawn Shop, EDWARD A. NASSAR was shot with a pistol in the back, during which time JOHN LOUIS EVANS, III, alias JOHN LEWIS EVANS, III, alias JOHN L. EVANS, III, alias JOHN LOUIS EVANS, alias JOHN EVANS was attempting to rob the said EDWARD A. NASSAR, in violation of Act Number 213, Section 2, Sub-Section B (Act #213, § 2(b)) Acts of Alabama, Regular Session 1975, against the peace and dignity of the State of Alabama.
2. The Grand Jury of said County further charge, that, before the finding of this indictment, JOHN LOUIS EVANS, III, alias JOHN LEWIS EVANS, III, alias JOHN L. EVANS, alias JOHN LOUIS EVANS, alias JOHN EVANS, whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully, intentionally, and with malice aforethought kill EDWARD A. NASSAR by shooting him with a pistol while the said JOHN LOUIS EVANS, III, alias JOHN LEWIS EVANS, III, alias JOHN L. EVANS, III, alias JOHN LOUIS EVANS, alias JOHN EVANS was engaged in the commission of or an attempt to commit a robbery of the said EDWARD A. NASSAR, against the peace and dignity of the State of Alabama.
3. The Grand Jury of said County further charge, that, before the finding of this indictment, JOHN LOUIS EVANS, III, alias JOHN LEWIS EVANS, III, alias JOHN L. EVANS, III, alias JOHN LOUIS EVANS, alias JOHN EVANS, whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully, intentionally and with malice aforethought kill EDWARD A. NASSAR, by shooting him with a pistol while the said JOHN LOUIS EVANS, III, alias JOHN LEWIS EVANS, III, alias, JOHN L. EVANS, III, alias, JOHN LOUIS EVANS, alias JOHN EVANS was engaged in the commission of or an attempt to commit a robbery of the said EDWARD A. NASSAR, to-wit: that on January 5, 1977, at a location known as The Pawn Shop, 3225 Springhill Avenue, Mobile County, Alabama, and while the said EDWARD A. NASSAR was an attendant at The Pawn Shop, EDWARD A. NASSAR was shot with a pistol in the back, in violation of Act Number 213, Section 2, Sub-Section B and Section 6, Sub-Section H (Act #213 §§ 2(b) and 6(H)) Acts of Alabama, Regular Session, 1975, in that the said killing was especially...
To continue reading
Request your trial
-
Cochran v. State
... ... The fact that Cochran made no effort to harm witnesses or bystanders does not necessarily constitute a mitigating circumstance in this particular case, see Dobbert v. Strickland, 718 F.2d at 1524, even though it was so considered under the circumstances presented in Evans v. State, 361 So.2d 654, 664 (Ala.Crim.App.1977), affirmed on other grounds, 361 So.2d 666 (Ala.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979) (The trial judge found as a nonstatutory mitigating circumstance "the fact that Mr. Evans made no effort or attempt to harm the two ... ...
-
Ritter v. Smith
... ... The trial court sentenced him to death. After exhausting his review by way of direct appeal in the Alabama state courts, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C.A. Sec. 2254 in the United States District Court for the Southern ... Ritter v. Smith, 568 F.Supp. 1499 (S.D.Ala.1983). This appeal followed ... Petitioner and John Lewis Evans, III, committed an armed robbery of a pawn shop in Mobile, Alabama, on January 5, 1977. During the course of this robbery, the pawn shop owner, ... ...
-
Lynn v. State, 4 Div. 183
... ... 1 The offense is by statutory definition a capital offense ... (2) Similar crimes are being punished capitally throughout Alabama. See, e.g., Evans v. State, 361 So.2d 654 (Ala.Cr.App.1977), affirmed in part, reversed in part, 361 So.2d 666 (Ala.1978), cert denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979), on remand, Ritter v. State, 375 So.2d 266 (Ala.Cr.App.1978), affirmed, Ex parte Ritter, 375 So.2d 270 (Ala.1979), vacated, 448 ... ...
-
Magwood v. Culliver
... ... mental illness rendered him ineligible for the death penalty; that his sentence violates the fair-warning principle of due process; that the state sentencing court's findings at his 1986 resentencing were inconsistent with this court's 1985 conditional grant of habeas corpus; that a jury should ... at 357-58, 84 S.Ct. 1697, in this case Kyzer cited two previous Alabama cases, Evans v. State, 361 So.2d 666 (Ala.1978) and Clements v. State, 370 So.2d 723 (Ala.1979), which this court has reviewed and can safely say are ... ...