Jones v. State

• Decision Date: 13 February 1913
• Citation: Jones v. State, 181 Ala. 63, 61 So. 434 (Ala. 1913)
• Parties: JONES v. STATE.
• Court: Alabama Supreme Court

61 So. 434

181 Ala. 63

JONES v. STATE.

Supreme Court of Alabama

February 13, 1913

Rehearing Denied March 17, 1913

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

Walter Jones was convicted of murder in the first degree, and he appeals.Affirmed.

The indictment charges the killing of S. Rowan, in the usual form, for murder in the first degree.The demurrers raise the questions that Rowan's true name is "Sloan Rowan," and is not set out.The application for change of venue was based upon the state of public mind, the action taken by the authorities and certain publications in the local papers, together with affidavits pro and con as to whether or not defendant could get a fair trial.When Bishop was being qualified as a witness, he answered: "I really cannot say that I have a fixed opinion.I might not be able to do justice.I have my opinion, but I don't know whether you call it a fixed opinion.I believe I could try the case fairly and impartially on the evidence, and render an honest and fair verdict."Roemer answered that he had a fixed opinion, but that he would be governed by the evidence in the case, and the evidence alone and the law given by the court.

The killing occurred on a car attached to the Western Railway train just before it left for Selma, and the diagram referred to in the opinion was a diagram of the car in which the killing occurred.When J.W. Brown was a witness, he was asked if he signed his name with reference to an article in the Advertiser as to the arson business in Lowndes county, and replied in the affirmative, whereupon the article referred to was shown him and introduced in evidence by the defendant.The article referred to deprecated the excitement and notoriety concerning certain burnings and their publication in the columns of the papers, and asserted that there was no excitement or unrest among the people of Benton.It was signed by S. Rowan and others, and it was shown that Rowan not only signed it, but wrote it.The court remarked while the attorneys were objecting to the fact that Rowan signed it: "The state consented for it to go in without objection as having been signed by this young man.I don't think I would have admitted it, if put up to me on objection.It is in, that is all there is to it; but any further question as to Mr. Rowan's connection with it is immaterial at this time."

The following is the oral charge of the court excepted to "In the trial of a homicide case, where the plea of not guilty and the statutory plea, plead not guilty by reason of insanity, are both interposed, the burden of proof as to the first plea is upon the state to satisfy the jury beyond a reasonable doubt of the guilt of defendant; but, as to the second plea, the burden of proof is upon defendant to establish the plea of not guilty by reason of insanity to the reasonable satisfaction of the jury by a preponderance of the evidence, and a reasonable doubt is not sufficient to acquit the defendant under this plea.Hence it will be seen that under these two pleas and issues, the burden of proof in the one case is upon the state and in the other upon the defendant.The weight and sufficiency of the evidence as to the one plea that is the state must satisfy the jury beyond a reasonable doubt; whereas, as to the other plea, the defendant must reasonably satisfy the jury by a preponderance of the evidence."

The following charges were refused to the defendant:

(3)"Testimony of defendant's character in this case is relevant only as affecting the credibility of the defendant as a witness, and not as having any bearing on defendant's guilt."

(4)"The evidence of the bad character of defendant cannot be considered by you in this case for the purpose of determining the guilt or innocence of defendant."

(24)"I charge you, gentlemen, that if you believe from all the evidence that the defendant heard from any source defamatory remarks of the deceased against his wife, that the effect of hearing such remarks was to destroy the free agency of the defendant at the time of the offense charged, then you must find defendant not guilty by reason of insanity although defendant knew it was wrong at the time of the killing, and it is unimportant whether such remarks of the deceased were actually uttered or not."

(29)"Although you may believe from the evidence that defendant is a man of bad character, you cannot convict him because of these facts, but, before you can convict him, you must believe beyond a reasonable doubt from the evidence that defendant shot and killed Rowan under circumstances constituting murder or manslaughter."

(30)"I charge you, gentlemen, that if you believe from the evidence in this case that one of defendant's progenitors was afflicted with insanity, that by reason of such insanity the defendant inherited a diseased mind, and that defendant believed that deceased had uttered the defamatory language against defendant's wife, and such belief, combined with any other cause, so disturbed defendant's mind as to suspend his will power entirely at the time of the offense charged, then you must find defendant not guilty by reason of insanity, and this is true, although defendant at the time of the killing knew the act was wrong."

(40)"If the jury have a reasonable doubt whether the circumstances were such as to impress a reasonable man's mind that he was in great danger of great bodily harm at the time of the killing, then they must give the prisoner the benefit of the doubt, and acquit him."

(55)"Before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with defendant's guilt, but that it is wholly inconsistent with every other rational conclusion, and, unless the jury are so convinced by the evidence of defendant's guilt that they would each venture to act upon that decision in matters of highest concern and importance to his own interest, then you must find defendant not guilty."

(23)"The court charges the jury that insanity is not a stronger term than of unsound mind, and does not imply a greater degree of mental infirmity."

(18)"If the defendant was informed of the opprobrious language regarding his wife as uttered by the deceased upon the day of the killing of the deceased, and that the defendant immediately, and upon the first opportunity, shot and killed the deceased, the killing having been the result of heated passion, cooling time had not elapsed, and you cannot find the defendant guilty of an offense greater than murder in the second degree."

(35)"If the jury believe from the evidence that at the time of the killing of the deceased by the defendantthe defendant was so affected by the illusion that Rowan was responsible for the dissemination of a report highly detrimental to his wife and her character, then they should consider that fact in regard to a mitigation of the offense charged in the indictment."

(36)"If the jury believe from the evidence that at the time of the consummation of the alleged homicide the defendant was laboring under a diseased condition of mind, that he was insane on the subject of the defamatory remarks made by deceased in regard to the wife of defendant, and on the subject of deceased and others having conspired to convict him of arson, and run him and his employés from his place of business in the town of Benton, then the jury should acquit the defendant, provided the jury believe from the evidence that such diseased condition of defendant's mind destroyed the power of defendant to comprehend rationally the nature and consequences of his act, and overpowered his will."

(50)"The court charges the jury that if you have a reasonable doubt in your mind arising out of the evidence as to whether defendant was sane or insane at the time of the killing, then it is your duty to acquit."

(E)"I charge you, gentlemen, that, before you can convict the defendant, you must weigh all the evidence in this case, and if, after considering all the evidence, you believe defendant is insane, your verdict must be guilty by reason of insanity."

Letcher, McCord & Harold, of Montgomery, and Frank Stone, of Bay Minette, for appellant.

George E. Gordon, of Hayneville, Wm. Paul McGaugh, of Montgomery, R.C. Brickell, Atty. Gen., W.L. Martin, Asst. Atty. Gen., and Hill, Hill, Whiting & Sterne, of Montgomery, for the State.

ANDERSON J.

An indictment which sets forth the defendant's Christian name by initials only is subject to plea in abatement, unless it is alleged that the Christian name was unknown to the grand jury otherwise than as laid in the indictment.Gerrish v. State,53 Ala. 476;O'Brien v. State,91 Ala. 27, 8 So. 560;Jones v. State,63 Ala. 28;Lyon v. State,61 Ala. 229;Wellborn v. State,154 Ala. 79, 45 So. 646.It is not so important, however, when individuals are only collaterally concerned in the act for which another is prosecuted--as for instance, those whose persons or property may have been affected thereby--that their names should be so fully and correctly stated, though they also ought to be.In the last class our court has held that it is permissible to charge the initial of the owner of the property affected or the person injured.Knight v. State,152 Ala. 56, 44 So. 585;Knight v. State,147 Ala. 104, 41 So. 911;Crittenden v. State,134 Ala. 145, 32 So. 273;Lowe v. State,134 Ala. 154, 32 So. 273;Gerrish v. State, supra;andLyon v. State, supra.

The designation of the party slain as "S. Rowan," instead of by his Christian name of "Sloan Rowan," did not render the indictment subject to a demurrer or plea in abatement, or create a variance available under the general charge.Franklin v. State,52 Ala. 414;Knight's Case, 147 Ala. 104, 41 So. 911....