Howard v. State

• Decision Date: 04 August 1931
• Docket Number: 7 Div. 787.
• Citation: 24 Ala.App. 512,137 So. 532
• Parties: HOWARD v. STATE.
• Court: Alabama Court of Appeals

137 So. 532

24 Ala.App. 512

HOWARD v. STATE.

7 Div. 787.

Court of Appeals of Alabama

August 4, 1931

Rehearing Denied Oct. 6, 1931.

Appeal from Circuit Court, Shelby County; E. P. Gay, Judge.

Dempsey Howard was convicted of manslaughter in the first degree, and he appeals.

Affirmed remanded for proper sentence.

Certiorari denied by Supreme Court in Howard v. State (7 Div 91) 137 So. 535.

W. T. Starnes, of Pell City, and L. H. Ellis of Columbiana, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The indictment in this case charged the appellant with the offense of murder in the second degree only; but notwithstanding this it appears from the record that the court orally charged the jury that the crime charged was "murder in the first degree," and pending the oral charge to the jury, the court charged fully upon the offense of murder in the first degree and instructed the jury: "After considering all the evidence, if you are convinced beyond all reasonable doubt that the defendant is guilty of murder in the first degree, then, the form of your verdict would be: 'We the jury find the defendant guilty of murder in the first degree and fix his punishment at death, or in your discretion, imprisonment in the penitentiary for life."' We are at a loss to understand this character of instruction by the trial court, as by the express terms of the indictment the accused was not upon trial for any greater offense than second degree murder. We are of the opinion, however, that the erroneous instructions did not militate against or injuriously affect the substantial rights of the accused, as the trial resulted in his conviction of manslaughter only as fixed by the verdict of the jury. Winter v. State, 123 Ala. 1, 10, 26 So. 949. Moreover, it does not appear that an exception was reserved in this connection. Error, therefore, will not be held.

This appellant was charged with having killed his own brother by unlawfully and with malice aforethought, but without premeditation or deliberation, striking him with a rock, or by hitting him with a rock, etc. As stated, the trial resulted in his conviction of manslaughter in the first degree and his punishment fixed at imprisonment in the penitentiary at one year. In conformity to the verdict the court pronounced sentence upon the defendant at imprisonment in the penitentiary for one year. This sentence is erroneous, for the statute expressly provides that in all cases in which the 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. The attempt of the jury to fix the place or character of punishment was futile and imposed no restriction upon the discretion vested in the judge by section 5265 of the Code 1923; and so much of the verdict as undertook to deal with that feature of the punishment to be imposed should and must be disregarded as surplusage, and the court upon such verdict should proceed to pronounce the sentence authorized by law. That part of the judgment prescribing the place of punishment to be in the penitentiary is reversed, and the cause is remanded to the end that the trial court may impose a proper sentence upon the defendant committing him to the custody of the authorities provided by law. Robinson v. State, 6 Ala. App. 13, 60 So. 558.

Before pleading to its merits, the defendant, as shown by the judgment entry, moved the court in writing to quash the indictment upon the grounds:

"1. Said indictment was not found on legal evidence.

"2. There was no legal evidence before the Grand Jury that the deceased, Earnest Howard, came to his death by or through, or as a result, of any act of this defendant.

"3. There was no legal evidence before said Grand Jury to the effect that the deceased, Earnest Howard, came to his death through or by any unlawful means.

"4. There was no legal evidence before said Grand Jury that returned the indictment in this case as to what caused or produced the death of the deceased, Earnest Howard.

"5. There was no legal evidence before said Grand Jury which returned the indictment in this case, from which said Grand Jury could draw the conclusion or find that Earnest Howard came to his death as the result of having been struck by the defendant with a rock.

"6. There was no legal evidence before said Grand Jury which returned the indictment in this case, upon which said Grand Jury could base a finding that the death of the deceased, Earnest Howard, was the result of any act at the hands of the defendant."

Whereupon the state moved to strike the foregoing motion to quash, but the court overruled the state's motion; and also overruled the motion of the defendant to quash the indictment. In this connection it was affirmatively shown that several witnesses were examined on this particular case by the grand jury who afterwards returned the indictment, and it has many times been decided, where this is true, "no inquiry into the sufficiency of the evidence can be indulged." Appellant cites and relies upon the case of Sparrenberger v. State, 53 Ala. 481,...