Gilmer v. State

• Decision Date: 13 February 1913
• Citation: 61 So. 377,181 Ala. 23
• Parties: GILMER v. STATE.
• Court: Alabama Supreme Court

61 So. 377

181 Ala. 23

GILMER v. STATE.

Supreme Court of Alabama

February 13, 1913

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Arnold Gilmer, alias, etc., was convicted of murder, and he appeals. Affirmed.

Evans &amp Parrish and Edward T. Graham, all of Montgomery, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

Accepting as the true version of this matter that phase of the testimony which is most favorable to the defendant, it may be asserted, with perfect confidence, that the defendant, while in a state of voluntary intoxication, intentionally and without any provocation whatever shot and killed a woman. There was no theory and no evidence tending to show that the shot was due to accident, and, if the voluntary intoxication of the defendant--conceding the fact of his intoxication--furnishes him with no excuse for the commission of the homicide, then he stands helpless before the law.

1. The rule in this state seems to be well established that voluntary drunkenness never excuses the commission of any crime of which the quo animo forms a necessary ingredient unless the drunkenness of the defendant has resulted in his actual insanity and for that reason has rendered him mentally incapable of committing a crime, or unless his drunken condition at the time of the commission of the act renders him incapable of entertaining the specific intent which forms an essential element of the crime. Mere voluntary drunkenness does not excuse or palliate the commission of any crime which is a crime without regard to the intent with which the act is done, and it furnishes no excuse or palliation for an offense of which the intent is a necessary ingredient unless it has produced "a state of mind which incapacitates the party from forming or entertaining a specific intent." It is said that men sometimes "brace" themselves with intoxicants for the purpose of nerving themselves to the perpetration of a crime, and, of course, the law will never permit voluntary intoxication to excuse or palliate a crime so committed. Whitten v. State, 115 Ala. 72, 22 So 483; Heninburg v. State, 151 Ala. 26, 43 So. 959; Heningburg v. State, 153 Ala. 13, 45 So. 246. In the instant case there was sufficient evidence to justify the conclusion of the jury that at the time the defendant committed the homicide he was, even if voluntarily drunk capable of forming and entertaining (and that he did actually form and entertain) that specific intent which is a necessary ingredient of murder in the first degree. In several written charges which the court gave to the jury on the above subject the law was stated as favorably to the defendant as, under the evidence, it could, with propriety, have been done.

2. The competency of dying declarations is exclusively for the determination of the trial court. The credibility and weight of such declarations are for the jury. The trial court first determines from the evidence addressed to it whether the party making the declaration was of the frame of mind required by the law to authorize the admission of the dying declaration, and if, from such evidence, it determines to admit the declaration and actually admits it, then it becomes the sole province of the jury to determine what, if any weight shall be given to such dying declaration. It is not an indispensable prerequisite to the admission of a dying declaration that the deceased should, in so many words, express a conviction that he is in extremis, that death is impending, and that he has no hope of life; but such a declaration is admissible when, after a careful consideration of all the circumstances, the judicial...