Flanigan v. State

• Decision Date: 28 March 1946
• Docket Number: 8 Div. 314.
• Citation: 25 So.2d 685,247 Ala. 642
• Court: Alabama Supreme Court
• Parties: FLANIGAN v. STATE.

25 So.2d 685

247 Ala. 642

FLANIGAN v. STATE.

8 Div. 314.

Supreme Court of Alabama

March 28, 1946

Rehearing Denied April 25, 1946.

Arthur L. Shaw and Jas. Smith, Jr., both of Tuscumbia, for appellant.

Wm. N. McQueen, Atty. Gen., and John O. Harris Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

9. Voluntary drunkenness does not excuse client, but if its excessiveness does produce such a mental condition as to render intoxicated person incapable of forming a specific intent, and, when intent is an essence of the crime drunkenness as affecting mental state is a question for jury.'

'13. Gentlemen of the Jury if you believe from the evidence in this case that the defendant Ben Flanigan at the time the crime was committed was drunk then you have a right to take that fact in consideration as affecting his mental condition, with reference to his capability of specific intent.'

'21. It is perfectly legal for a man to plead not guilty and not guilty by reason of insanity and you are not authorized to draw any unfavorable inference from defendant's having interposed both pleas.'

'31. I charge you gentlemen of the jury that in order to convict the Defendant as an accessory to this alleged murder, it is necessary to show a previous understanding between the defendant and the principal to kill or injure the deceased, or that the defendant had knowledge of the intent or design of the principal to kill deceased.'

'32. I charge you gentlemen of the jury that before you are authorized to convict the defendant as aider or abettor you must be satisfied beyond a reasonable doubt from all of the evidence, that there was by prearrangement or on the spur of the moment, a common enterprise or adventure, to murder the deceased, existing between the defendant and Almon Stutts.'

BROWN Justice.

The appellant R. Ben Flanigan, to whom we will hereafter refer as the defendant, was indicted, tried and convicted of murder in the first degree and sentenced to death by electrocution. On being arraigned the defendant pleaded 'not guilty' and 'not guilty by reason of insanity.' Thereafter by leave of the court he withdrew his pleas and filed a demurrer to the indictment which contained three counts, but inasmuch as counts two and three were nolle prossed, and the trial proceeded only on count one, we will limit our consideration to that count, in treating the demurrer filed thereto on the single ground, 'That the caption of the indictment does not contain the legal requirements.'

On the authority of Reeves v. State, 20 Ala. 33, and Goodloe v. State, 60 Ala. 93, it is insisted that the caption of the indictment should show who presided as judge, the venire and who were summoned and sworn as grand jurors. The record here is captioned as required by Rules 26 and 27 of Supreme Court Practice. Code 1940, Tit. 7, Appendix, pp. 1013, 1015, and § 380, Tit. 15, Code 1940. The indictment itself contains the following caption:

'The State of Alabama,

Morgan County.}

Circuit Court February Term, 1945.'

Said count one is in the following words: 'The Grand Jury of said county charge that before the finding of this indictment R. Ben Flanigan, whose name is to the Grand Jury otherwise unknown, unlawfully, and with malice aforethought, killed Lee Shafer, by shooting him with a gun or pistol, against the peace and dignity of the State of Alabama.'

In Reeves v. State, 20 Ala. 33, the caption of the indictment and the charging part thereof was substantially the same as the indictment here and the conviction in that case was sustained and the judgment of the circuit court affirmed on appeal. In concluding the opinion Chief Justice Dargan observed:

'Nor is it necessary that the name of the county should be repeated, in that part of the indictment where the pleader has inserted by mistake Buter for Butler. But in framing an indictment, after stating the name of the county in the margin, it is sufficient to say, 'the grand jurors on their oath present,' &c., leaving out that portion which we usually find inserted, 'of the State of Alabama, empannelled, sworn, and charged to inquire for the body of _____ county.' The caption of an indictment is that entry of record showing when and where the court is held, who presided as judge, the venire, and who were summoned and sworn as grand jurors; and this caption is applicable to, or is a part of every indictment, and need not be again repeated in any part of the indictment. The State v. Murphy, 9 Port. 487; * * *. But after stating in the margin the name of the State and the county, the pleader may at once proceed: 'the grand jurors on their oath present,' &c., and a reference to the caption will show when, where, and under what authority the presentment was made.' [Italics supplied.]

The trial in that case was in the court and county wherein the indictment was preferred.

It seems reasonably clear that the learned Chief Justice by the italicized utterances had reference to the caption of the record, the organization of the court for the term in which the indictment was preferred--which is essential, as showing jurisdiction of the trial court. This conclusion is supported by the opinion in Goodloe v. State, 60 Ala. 93 [95], wherein it was observed:

'Following the lead of the cases cited above, we feel it our duty to regard the question as settled in this State, that a caption, such as is described in Reeves v. State, supra, is an essential of a good indictment; and when the question comes before us on appeal if the record does not contain such caption, it is a fatal error. If it were an open question in this State, it might admit of serious doubt if this doctrine did not have its origin in certiorari proceedings from courts of limited, inferior jurisdiction; and that it should not be applied to records from courts of general jurisdiction. * * *' [Italics supplied.]

In the Goodloe case the indictment was preferred by a grand jury impaneled in the Circuit Court of Franklin County at the fall term, 1868. He was tried at the fall term of 1877, in the Circuit Court of Colbert County and was convicted and sentenced to the penitentiary for a term of five years. While there was an agreement of some sort about the transfer of cases to the Colbert Circuit Court, there was no schedule of the docket of said cases contained in the record. Nor was there any showing as to what cases were embraced in the agreement. The record of that appeal did not show an organization of the grand jury. Otherwise stated, the record did not show that the Circuit Court of Colbert County had jurisdiction of the defendant and his case. This court, after quoting from the latter part of the opinion in Reeves v. State, in reference to the caption, reversed the judgment of conviction for the reason that, ' The record in the present case fails to show a legal transfer to Colbert County, and, therefore, fails to show any jurisdiction in the court to try the offender.' 60 Ala. 93, 96. [Italics supplied.]

In Williams v. State, 171 Ala. 56, 54 So. 535, 536, the indictment was preferred by a grand jury organized in the Circuit Court of Covington County. The defendant was tried and convicted in the Andalusia City Court and from the judgment of conviction he appealed. The judgment was reversed on the ground that there was a noncompliance with the statute creating the city court which provided:

"At the next regular term of the circuit court for said county, and on the first day thereof, it shall be the duty of the presiding judge thereof to make and enter upon the minutes of said court an order directing the clerk of such court to deliver to the judge of the city court all indictments in misdemeanor cases then pending and undetermined in said court, and said order shall provide for the delivery of all other indictments in misdemeanor cases which may hereafter be found by any grand jury of said court, or that may be pending therein, together with all the papers, data, and a copy of the records of such indictments and the minute entries therein, and upon such delivery the jurisdiction of the circuit court shall cease, and the said city court be empowered to try all such causes as if the same had originated in said city court,' etc.'

The court further observed: 'The transcript of the record certified in this case contains what purports to be a copy of the organization of the term of the circuit court at which, and of the grand jury by which, the indictment was preferred against the defendant. But the certificate authenticates the record of the city court as it was on the 12th day of January, 1911. The trial was had on September 1, 1910.' [Italics supplied.]

The offense for which Reeves was indicted in Reeves v. State, supra, was committed in the year 1850, and he was tried in January, 1852, before the adoption of the Code of 1852, § 3501 of which prescribed the form and substance of indictments as follows:

'§ 3501. The indictment must contain:

'1. The name of this state, the county, court, and term in which it is preferred.

'2. A statement of the facts constituting the offence, in ordinary and concise language, without prolixity or repetition; and in such a manner as to enable a person of common understanding to know what is intended; and in no case are the words 'force and arms,' or 'contrary to the form of the statute,' necessary.'

Section 3502, Code 1852 provides:

'It may be substantially in the following form:

'The state of Alabama,

County.}

Circuit Court Term, 185_.'

These sections have been brought forward through the several codes since that time and Section 5601 is now § 229, Tit. 15, Code 1940, which prescribed the 'caption and substance of the indictment.'

Section 259, Title 15,...