Houlton v. State, 3 Div. 915

• Decision Date: 12 June 1950
• Docket Number: 3 Div. 915
• Citation: Houlton v. State, 254 Ala. 1, 48 So.2d 7 (Ala. 1950)
• Parties: HOULTON v. STATE.
• Court: Alabama Supreme Court

Page 7

48 So.2d 7

254 Ala. 1

HOULTON v. STATE.

3 Div. 915.

Supreme Court of Alabama.

June 12, 1950.

STAKELY, Justice.

To the Honorable, the Court of Appeals of Alabama

Judicial Building

Montgomery, Alabama

Dear Sirs:

The Court of Appeals under the provisions of § 88, Title 13, Code of 1940 has certified for our answer the following:

'The appellant was indicted under the following indictment:

"The Grand Jury of said County charge, that before the finding of this indictment--William J. Houlton, unlawfully and with malice aforethought, killed Kerry Wayne Ingram, by administering to said Kerry Wayne Ingram, arsenic poison, against the peace and dignity of the State of Alabama.'

'He was convicted of the offense of murder in the second degree and his punishment was fixed at fifteen years in the State penitentiary.

'In his oral charge, the trial judge instructed the jury as to both degrees of murder. Appellant's counsel did not reserve any exceptions to the oral charge. Neither did they request any written charges in an attempt to confine the question of guilt of the accused to only murder in the first degree. They attempted to raise the question for the first time by motion for a new trial. The motion was overruled.

'As authorized under the provisions of Title 13, Section 88, Code of 1940, the following abstract questions are hereby certified to your court for an opinion as guidance to our court in said cause, towit:

'1. On the indictment hereinabove set out, was the jury authorized to find the defendant guilty of a lesser offense than murder in the first degree?

'2. Could the point be raised by a motion for a new trial in the absence of exceptions to the oral charge and requests for written instructions limiting the issue to murder in the first degree?'

It is very earnestly insisted by the appellant that inasmuch as he was tried under indictment for murder in the first degree by poisoning, he could not be found guilty of a lesser offense, namely, murder in the second degree. It is further insisted that since his conviction for murder in the second degree cannot stand, he must be discharged, since he was acquitted of murder in the first degree. The statute under which the appellant was indicted, § 314, Title 14, Code of 1940, defining murder in the first and second degree is as follows.

' § 314. Every homicide, perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery, or burglary, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree; and every other homicide, committed under such circumstances as would have constituted murder at common law, is murder in the second degree.'

Section 317, Title 14, Code of 1940 reads as follows:

' § 317. When the jury find the defendant guilty under an indictment for murder, they must ascertain by their verdict whether it is murder in the first or second degree; but if the defendant on arraignment confesses his guilt, the court must proceed to determine the degree of the crime, by the verdict of a jury, upon an examination of the testimony and pass sentence accordingly.'

In construing this last mentioned statute this court has held that whenever a jury finds a defendant guilty under an indictment for murder the jury must ascertain by its verdict whether it is murder in the first or second degree. Mitchell v. State, 210 Ala. 457, 98 So. 285; Harden v. State, 211 Ala. 656, 101 So. 442.

In connection with this last mentioned statute this court has held that it is the mandatory duty of the court to instruct the jury orally as to the different and distinguishing elements of each degree of murder and further that it is error for the court to so instruct the jury as to take from it the right and duty to ascertain by its verdict whether the defendant was guilty of murder in the first of second degree. Jackson v. State, 226 Ala. 72, 145 So. 656; Peterson v. State, 227 Ala. 361, 150 So. 156. Furthermore it is the law of this state that under an indictment charging murder in the first degree, an accused may be found guilty of any of the lesser offenses included therein, such finding being within the province and discretion of the jury hearing the case. In this connection in Hunter v. State, 156 Ala. 20, 47 So. 133, 134, this court said: 'The defendant was indicted for murder in the first degree, and a conviction could be properly had thereunder for any lower degree of the offense, notwithstanding a separate form may be prescribed under section 7086, Code 1907 [Code 1940, Tit. 14, § 316].'

Where murder is charged by administering poison is the case removed from the foregoing principles? We do not think that it is. In the case of Howerton v. State, 191 Ala. 13, 67 So. 979, 980, in considering § 317, Title 14, Code of 1940, which appears in the Code of 1907 as § 7087, this court said:

'* * * For 50 years it has been the law that when the jury find the defendant guilty under an indictment for murder, 'they must ascertain, by their verdict, whether it is murder in the first or second degree,' and if the defendant confesses his guilt on arraignment, the court must proceed 'to determine the degree of the crime, by the verdict of a jury.' Code 1907, § 7087; Clay's Digest, 412, 413, §§ 1, 2.

'(1) This court has uniformly held that no judgment of conviction, under an indictment for murder, can be sustained, unless the verdict of the jury expressly finds the degree of the crime of which the defendant is convicted. Cobia v. State, 16 Ala. 781; Levison v. State, 54 Ala. 520, 524; Brown v. State, 109 Ala. 70, 20 So. 103; Parham v. State, 147 Ala. 57, 618, 42 So. 1; Gafford v. State, 125 Ala. 1, 9, 28 So. 406; Roberson v. State, 175 Ala. 15, 18, 57 So. 829. That the murder was committed by means of poison can make no difference. Johnson v. State, 17 Ala. 618-627.

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'(3) The fact that the indictment charged that defendant killed Alice Howerton by administering strychnine did not relieve the jury of the requirement of the statute that on conviction they must ascertain by their verdict the degree of murder. For this defective verdict the judgment of conviction must be reversed, and the cause is remanded.'

In the earlier case of Johnson v. State, 17 Ala. 618, this court had occasion to consider a like question involving a homicide perpetrated by the use of poison. This court there said: 'In this case the jury did not by their verdict ascertain the degree of murder of which the prisoner was guilty. For that cause, the prisoner moved in arrest of judgment, but this motion was overruled. In Cobia v. State, 16 Ala. 781, we held that the crime of murder being divided by our penal code into two grades with different punishments, it was necessary on the trial of an indictment for that offence that the verdict should ascertain the degree, otherwise no judgment could be rendered upon it. It is now contended by the Attorney General, that as the statute expressly makes homicide by means of poison murder in the first degree, it was not necessary, in this case, for the jury to ascertain the degree. To that it may be answered, that the statute expressly requires the jury to ascertain the degree, without excepting the case of homicide by means of poison. For this and other reasons, we think the degree should have been ascertained by the jury, and that therefore there was error in overruling the motion to arrest the judgment'.

The decision in Johnson v. State, supra, was also referred to with approval by this court in Brown v. State, 109 Ala. 70, 20 So. 103.

We think it clear that the...