Gunter v. State

Decision Date25 January 1888
PartiesGUNTER v. STATE. EX PARTE GUNTER.
CourtAlabama Supreme Court

Appeal from circuit court, Autauga county; JAMES W. LAPSLEY, Judge.

Indictment of Harris Gunter for murder. The bill of exceptions contained this statement: "Eight practicing physicians, upon the evidence, having heard the whole of it, testified that, in their opinion, upon said evidence, assuming it to be true the defendant was insane at the time he shot Montgomery. The defendant asked Dr. J. B. Gaston the following questions 'Upon the whole of the evidence in this case, assuming it to be true, is it, or not, your opinion that the homicide was the result or offspring of a diseased brain?' 'Upon the whole of the evidence in this case, (all of which you have heard,) assuming it to be true, what is your opinion as to the condition of the defendant's mind at the date of the killing of Montgomery? Was his mind at that time sane or insane? and, if insane, in your opinion, was the homicide so connected with such insanity, in the relation of cause and effect, as to have been the product of it solely?"' The court sustained objections to each of these questions and the defendant excepted. A written statement was admitted in evidence on the part of the state, as the testimony of Dr P. Bryce, in which he expressed the opinion, based on certain facts, hypothetically stated, that the defendant was not insane at the time the homicide was committed. Among the facts thus stated were these: "Some weeks after he [defendant] was committed to jail, he said he heard things which he did not hear, and saw things which he did not see, and gave satisfactory evidence that his mind was disordered to the extent that he was laboring under hallucinations and illusions of sight and hearing." The defendant requested the following charges in writing, which the court refused to give, and he excepted to their refusal: (1) "If the jury believe from the evidence that the defendant was insane at the time of the killing of Montgomery, then they must acquit him, unless the evidence satisfies them beyond a reasonable doubt that such insanity was not the efficient cause of the act,-that he would have done the killing even if he had not been insane." (2) "If the jury believe from the evidence that the defendant was insane at the time he killed Montgomery, then, if they have a reasonable doubt as to whether such insanity was the cause of the killing, they must acquit him." (3) "In determining what weight is to be given to the opinion of Dr. Bryce, the jury must determine whether the facts upon which that testimony is based are shown by the evidence; and if the jury find from the evidence that the defendant had insane delusions on the day of the killing, then such opinion is entitled to but little weight." (4) "If the jury believe from the evidence that the defendant killed Montgomery in a fit of mania, he is not responsible, and they must acquit him." (5) "If the jury believe from the evidence that the defendant, at the time of the killing of Montgomery, was laboring under an insane delusion, and that he would not have committed the act but for the existence of such insane delusion, then they must acquit him." (6) "If the jury believe from the evidence that the opinion of Dr. P. Bryce, given in evidence in this case, is founded on the assumption that the defendant gave no evidence of any insane delusions until some weeks after he was confined in jail, and if they further believe that the evidence in the case shows that he had said delusions on the day he was confined in jail, then such opinion is not entitled to much weight." Defendant was convicted, and appeals, and applies for writ of habeas corpus.

Brickell, Sample & Gunter, Troy, Tompkins & London, and Watts & Sons, for appellant.

Thos. N. McClellan, Atty. Gen., W. M. Brooks, and Geo. F. Moore, for the State.

SOMERVILLE J.

The prisoner was, in October, 1886, indicted for the murder of William D. Montgomery. The trial of the cause, on change of venue, occurred in August, 1887, and he was convicted of manslaughter in the first degree. The defense interposed was the alleged insanity of the prisoner. The verdict of the jury is in the following words: "We the jury find the defendant guilty of manslaughter in the first degree, and assess his punishment at thirty months' hard labor." The sentence of the court on this verdict was imprisonment in the penintentiary for 30 months. The case comes before us by direct appeal and on application for discharge of the prisoner through the writ of habeas corpus.

1. It is first insisted that the verdict of the jury is void, or at least voidable, and that no judgment of conviction could be lawfully pronounced on it by the court. The argument is that the words "hard labor," used in the verdict, must necessarily be construed to intend hard labor for the county, and not hard labor for the state, in the penitentiary or elsewhere, and that the jury had no authority to fix this particular punishment of hard labor for more than two years. The difficulty arises from a real or apparent repugnancy between section 4303 of the Code of 1876, prescribing the punishment of manslaughter, and the act of March 7, 1876, which is found condensed in section 4450 of the same Code, providing generally for the imposition of legal punishments in all cases of conviction for crime. The first section referred to reads as follows, so far as material to this case: "Any person who is convicted of manslaughter in the first degree, must, at the discretion of the jury, be imprisoned in the penitentiary, or sentenced to hard labor for the county, for not less than one year, nor more than ten years." Code 1876, § 4303. The other section, as condensed in part from and amended by the act of March 7, 1876, (Acts 1875-76, p. 287,) after prescribing what shall be the several and only legal punishments in this state, specifying, among others, hard labor for the county, and imprisonment in the penitentiary, provides as follows: "And in all cases in which the period of imprisonment or hard labor is more than two years, the sentence must be to imprisonment in the penitentiary; and in all cases of convictions for felonies, in which the imprisonment or hard labor is for more than twelve months, and not more than two years, the judge may sentence the party to imprisonment in the penitentiary, or confinement in the county jail, or to hard labor for the county, at his discretion; and in all cases in which imprisonment or sentence to hard labor is twelve months or less, the party must be sentenced to imprisonment in the county jail, or to hard labor for the county." Code 1876, § 4450. The act of March, 1876, being more recent in date than section 4303 of the Code, must be construed to modify and amend it, so far as there may be any necessary conflict or incongruity between the provisions of the two statutes; and, in construing section 4450, it is proper that we should examine the original statute from which it was codified. Steele v. State, 61 Ala. 213. We are forced to draw three conclusions from this act, which we may formulate as follows: (1) In all cases of convictions for felonies, however punishable, whether by imprisonment or hard labor, in the penitentiary or elsewhere, the law fixes the sentence, and the duty of imposing it is reposed in the presiding judge, circuit, or city, as the case may be. (2) The place of imprisonment, or hard labor, is determined, not by the discretion of the jury, but by the period of time, or number of years, for which it is assessed or imposed. If this term of punishment is over two years, it must be in the penitentiary; it cannot be elsewhere. If under two years and over one year, the sentence may, within the discretion of the judge, be either imprisonment in the penitentiary, or in the county jail, or to hard labor for the county. If the term of sentence, whether by imprisonment or hard labor, is 12 months or less, it cannot be in the penitentiary. It must be in the county jail, or to hard labor for the county. (3) The act thus necessarily embraces within the punishment of imprisonment in the penitentiary the idea of hard labor for the state. We repeat, that the law itself thus grades the sentence, and the place and nature of the imprisonment, in all cases, according to the number of years of imprisonment assessed by the jury, where the period is over two years, as in this case, or is 12 months or less. The discretion of the jury, whether in convictions for manslaughter or other offenses, in such cases has no room to assert itself in controlling or regulating the place or nature of the punishment as being in the penitentiary or elsewhere. Such discretion is exhausted in fixing the time or number of years for which the punishment is to continue. "In all cases," says the statute, "in which the period of imprisonment or hard labor is more than two years, the sentence must be to imprisonment in the penitentiary." Code 1876, § 4450. The effect of section 4450, therefore, is to amend section 4303 so as to modify the discretion there reposed in the jury.

It devolves on them to say, by their verdict, whether the defendant is guilty of the crime charged in the indictment and to fix the degree of the homicide. If the verdict be, as here, guilty of manslaughter in the first degree, the only further discretion possessed by the jury is to fix the period or number of years of his punishment. If this term, as fixed, exceeds two years, the law, through the mouth of the judge, and not the jury, pronounces the sentence by adjudging the place or nature of the punishment. Hobbs v. State, 75 Ala. 1; Steele v. State, 61 Ala. 213. This view of the law forbids us to conclude that the words "hard labor," in the...

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