Gaines v. State

• Decision Date: 17 May 1906
• Citation: 146 Ala. 16,41 So. 865
• Parties: GAINES v. STATE.
• Court: Alabama Supreme Court

41 So. 865

146 Ala. 16

GAINES v. STATE.

Supreme Court of Alabama

May 17, 1906

Rehearing Denied June 30, 1906.

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

"To be officially reported."

Will Gaines was convicted of murder, and he appeals. Affirmed.

Julius Sternfeld, for appellant.

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

DOWDELL J.

The defendant was tried and convicted on an indictment for murder, and was sentenced to imprisonment in the penitentiary for life. From the judgment of conviction the present appeal is taken. The indictment which charges murder in the first degree omits to aver the means with which the offense was committed. No objection on this account was raised to the indictment in the court below by demurrer or otherwise. The objection is for the first time raised here.

It is insisted by the state that, as no question of law was reserved by the defendant on the trial below, it cannot here be raised for the first time on appeal, and, further, that the question not having been reserved on the trial, it could only be brought here by writ of error, which was not done in this case. In support of this contention, the case of Ex parte Knight, 61 Ala. 483, is cited and relied on as an authority. Since the decision in that case, a new statute has been introduced into our Code (section 4313 of the Criminal Code of 1896), which brought with it a change in the law as it theretofore existed in respect to appeals in criminal cases. That section, which is found in chapter 126 of the Criminal Code of 1896, reads as follows: "Any person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court, may appeal from the judgment of conviction to the Supreme Court." In the same chapter we find section 4333, which reads as follows: "In cases taken to the Supreme Court under the provisions of this chapter, no assignment of errors, or joinder in errors, is necessary; but the court must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied no injury resulted therefrom to the defendant." While the remedy by writ of error under the statute, in all cases where applicable, remains the same as heretofore, still under the statutes above set out we see no escape from the conclusion that it becomes the duty of this court, when a case is brought here by appeal from a judgment of conviction, to "consider all questions apparent on the record."

But it is insisted that, as no objection was raised to the indictment in the trial court, the defect was waived, and that there is therefore no error apparent of record. The statute, however, says we must consider all "questions" apparent on the record. The objection to the indictment is here made a question, and it is one that is apparent on the record. At the common law an averment of the means with which the offense charged was committed was necessary to a good and sufficient indictment for murder. And under the criminal procedure of the Code it is evident that it was the intention of the lawmakers that the averment of the means with which the alleged homicide was committed, and which was a necessary averment in a common-law indictment should not be dispensed with, but, on the contrary, should be observed. The form of indictment No. 63 prescribed in our Criminal Code for murder (page 333), requires an averment of the means with which the offense was committed. So, likewise, form of indictment for manslaughter in the first degree (No. 60, p. 332), and form No. 61, for manslaughter in the second degree, and form No. 64, for killing in a sudden rencounter--each and all of these forms of indictment provide for an averment of the means with which the offense charged was committed. Section 4894 declares the forms given in the Code sufficient. Section 4906 provides as follows: "When the means by which the offense was committed are unknown to the grand jury, and do not enter into the essence of the offense, the indictment may allege that they are unknown to the grand jury." Section 4911 provides that, "when the offense may be committed by different means, or with different intents, such means or intents may be alleged in the count in the alternative." So it would seem from these statutory provisions that an averment of the means with which the offense charged was committed is a necessary averment to a good indictment, and without it the indictment would be defective and subject to demurrer. The principle here declared is recognized in Hornsby v. State, 94 Ala. 55, 10 So. 522.

It is further insisted that under section 4895 of the Criminal Code of 1896 the indictment should not be held insufficient. That section reads as follows: "An indictment must not be held insufficient, nor can the trial, judgment, or other proceedings thereon, be affected by reason of any defect or imperfection in any matter of form which does not prejudice the substantial rights of the defendant on the trial." Without stopping to discuss the full meaning and scope of this statute, it is sufficient to say that it is without application to the case before us, as the question under consideration is not one of mere defect or imperfection in a matter of form, but, from what we have said above, a defect in substance. The means with which the offense charged was committed, however, is not, in an indictment for murder, a constituent element of the offense. The unlawful killing with malice aforethought, regardless of the means employed constituted murder. Every constituent element of murder is averred in the indictment. The omission to aver the means employed, though in a sense a defect of substance, and not one of mere form, yet is such a defect as must be taken advantage of by demurrer. This principle is stated in effect in Hornsby v. State, supra. See, also, the following cases: Oregan v. Bruce, 5 Or. 71, 20 Am. Rep. 734; Cathcart v. Commonwealth, 37 Pa. 114; Wolf v. State, 19 Ohio St. 256. Moreover, section 4333 of the Criminal Code of 1896, which we have set out in full above, provides: "But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted to the defendant." This provision was introduced into section 4333 at the time of the adoption of the Code of 1896, and therefore became the law subsequent to the time of the decision of Maxwell v....