Jacobs v. State
| Decision Date | 12 April 1979 |
| Citation | 371 So.2d 448 |
| Parties | In re John L. JACOBS v. STATE of Alabama. Ex parte John L. Jacobs. 77-724. |
| Court | Alabama Supreme Court |
John L. Carroll, Morris S. Dees, Stephen J. Ellmann, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., Bernard F. Sykes, Asst. Atty. Gen., and Chief of the Criminal Appellate Division, Elizabeth N. Petree, Asst. Atty. Gen., Edward E. Carnes, Asst. Atty. Gen., for the State of Alabama, respondent.
This petition for writ of certiorari was granted because petitioner was convicted under Code 1975, § 13-11-2(a)(2), and given the death penalty. The Court of Criminal Appeals affirmed the conviction and sentence. We reverse and remand for a new trial on the authority of Clements v. State, Ala., 370 So.2d 723 (Ala.1979).
The pertinent facts are set out in the opinion of the Court of Criminal Appeals, 371 So.2d 429 (Ala.Cr.App.1977). In sum, petitioner was indicted under Code 1975, § 13-11-2(a)(2), for his participation in the robbery and killing of Mr. Walter Knight, a crime for which his brother also was convicted and sentenced to die. Jacobs v. State, 361 So.2d 607 (Ala.Cr.App.1977), aff'd, 361 So.2d 640 (Ala.1978), cert. denied, --- U.S. ----, 99 S.Ct. 1034, 59 L.Ed.2d 83 (1979).
The indictment is in three counts. Count I states:
"John L. Jacobs (robbed Walter Robert Knight), and while the said (defendant) was engaged in robbing the said Walter Robert Knight, the said (defendant) intentionally killed Walter Robert Knight, by shooting him with a gun . . . ."
Count II states in pertinent part:
"John L. Jacobs (robbed Walter Robert Knight), and while the said (defendant) was engaged in robbing the said Walter Robert Knight, the said (defendant) unlawfully, and with malice aforethought, intentionally killed Walter Robert Knight, by shooting him with a gun . . . ."
Count III states:
"John L. Jacobs * * * unlawfully and with malice aforethought, intentionally killed Walter Robert Knight, by shooting him with a gun, * * * while (robbing him)."
The verdict returned by the jury was as follows:
"We the jury find the defendant John L. Jacobs guilty of first degree murder with aggravated circumstances as charged in the indictment, and we fix the punishment at death."
The indictment contains language similar to the indictments in three other recent death penalty cases which have been before this Court. Count I alleges robbery when the victim is intentionally killed, essentially the same indictment as in Watters v. State, 369 So.2d 1272 (Ala.1979). Count II alleges robbery when the victim is murdered, similar to the indictment in Clements v. State, supra. Count III is for murder during a robbery, as in Evans v. State, 361 So.2d 666 (Ala.1978), cert. denied, --- U.S. ----, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979).
Each count of the indictment is a good count, sufficient to allege the crime of robbery under aggravated circumstances, i. e., robbery when the victim is intentionally killed or murdered. This is the only crime named in § 13-11-2(a) (2) and the only crime punishable by death under that subsection. Clements v. State, supra.
The jury verdict is not responsive to any count in the indictment. Save for the difference in the name of the defendant, the verdict form in this case is Identical to the verdict form condemned in Clements. An indictment for robbery under aggravated circumstances under § 13-11-2(a)(2) cannot support a conviction for murder under aggravated circumstances, the capital offense covered by §§ 13-11-2(a)(5), (6), (7), (10), (11), (12), (13), and (14). None of the three counts of the present indictment alleges any of the offenses of murder under aggravated circumstances covered by the foregoing subsections. They each allege the offense of robbery under aggravated circumstances.
There is also reversible error in the trial court's oral instructions to the jury. Portions of the oral instructions are identical to those given in the Clements case. In the instant case the trial judge stated:
(Emphasis supplied.)
The trial court continued:
". . . In other words, the indictment actually charges two offenses robbery of Walter Robert Knight, and the Intentional killing of the said Walter Robert Knight During the process of The robbery." (Emphasis supplied.)
Later, the trial judge stated:
"If after consideration of all the evidence in this case you are convinced beyond a reasonable doubt and to a moral certainty that the defendant is guilty of Murder in the first degree under circumstances of aggravation, that is, that he or someone who was a co-conspirator with him in carrying out a common design Intentionally killed Walter Robert Knight While in the process of Robbing him, it is your duty to so find. . . ." (Emphasis supplied.)
As previously noted, Count I of the indictment charges the defendant, while engaged in robbing the victim, intentionally killed the victim. However, Counts II and III charge first degree murder rather than an intentional killing. "Murder in the first degree" and "intentional killing" denote different degrees of homicide. These terms are not interchangeable. The burden of the State under Counts II and III was to prove murder in the first degree. This was not made clear in the above-quoted oral instructions where first degree murder and intentional killing are equated.
The State argues that we cannot consider the trial court's oral instructions because they were not objected to by the petitioner. This may have been so under the old plain error rule applicable to automatic appeals, Code 1975, § 12-22-241. That rule provided that an appellate court could, at its...
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McGowan v. State
... ... The trial court expressly found that Hines and Garrett were "very well qualified." (CR. 287.) In the hearing on this motion, the trial court made the following specific findings: ... "I have read your motion and looked at the Jacobs case [ Jacobs v. State, 371 So.2d 429, 443 (Ala.Crim.App.1977), rev'd on other ground, 371 So.2d 448 (Ala.1979)] and I find that both of you are well qualified to try this case. You may not have handled a lot of—of felony cases, but, both of you are active civil litigators with an exemplary ... ...
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Parker v. State
... ... Because one of the appellant's two court-appointed attorneys had five years of prior criminal law experience, the appellant's claim that he is entitled to a new trial on the ground that the requirements of Ala.Code 1975, § 13A-5-54, were not met is without merit. See Jacobs v. State, 371 So.2d 429, 447 (Ala.Cr.App.1977), reversed on other grounds, 371 So.2d 448 (Ala.1979). The trial judge entered written findings of facts and conclusions of law on this issue. Those findings are supported by the record ... Prior to trial, one of the appellant's two ... ...
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Beck v. State
... ... As this Court, the Court of Criminal Appeals, and the federal courts have all held, under Alabama's statute the trial court judge and not the jury is the sentencing authority. Jacobs (Jerry Wayne) v. State, 361 So.2d 640, 644 (Ala.1978) ("In Alabama, the jury is not the body which finally determines which murderers must die and which must not."), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83 (1979); Beck v. State, 365 So.2d 985, 1001 (Ala.Cr.App.), aff'd, 365 So.2d ... ...
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McGowan v. State, No. CR-95-1775 (Ala. Crim. App. 12/12/2003)
... ... The trial court expressly found that Hines and Garrett were "very well qualified." (CR. 287.) In the hearing on this motion, the trial court made the following specific findings: ... "I have read your motion and looked at the Jacobs case [ Jacobs v. State , 371 So. 2d 429, 443 (Ala. Crim. App. 1977), rev'd on other ground , 371 So. 2d 448 (Ala. 1979)] and I find that both of you are well qualified to try this case. You may not have handled a lot of — of felony cases, but, both of you are active civil litigators with an ... ...