Julius v. State, 3 Div. 583

• Citation: 455 So.2d 975
• Decision Date: 19 July 1983
• Docket Number: 3 Div. 583
• Parties: Arthur James JULIUS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 975

455 So.2d 975

Arthur James JULIUS, alias v. STATE.

3 Div. 583.

Court of Criminal Appeals of Alabama.

July 19, 1983.

Rehearing Denied Aug. 16, 1983.

George Cameron, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Ed Carnes and Helen P. Nelson, Asst. Attys. Gen., for appellee.

SAM W. TAYLOR, Judge.

Appellant was indicted by the August, 1978, term of the Montgomery Grand Jury for the capital murder of his cousin, Susie Bell Sanders. Ala.Code §§ 13-11-2(a)(6), (13) (1975). He was tried, convicted, and sentenced to death, with such being affirmed by this court. Julius v. State, 407 So.2d 141 (Ala.Cr.App.1980). Pursuant to the holdings in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980), this cause was remanded to the circuit court for a new trial. The instant appeal is a result of appellant's retrial wherein he was again convicted of the capital crime and sentenced to death. ¹

The instant facts are substantially the same as those previously recited by this court in our original disposition of Julius. Consequently, any further recitation of facts is unnecessary.

I

Appellant contends that the trial court committed reversible error during its oral charge to the jury.

After the jury had been given its instructions and instructed to deliberate, it sent a question to the trial court. The jury was reassembled in the courtroom where the trial court disclosed the nature of the jury's question--redefinition of the elements of the crimes with which appellant was charged. The trial court repeated its lengthy charge on such and in conclusion stated:

"It's only if you don't find any aggravating circumstances that you then have to determine whether it's murder in the first degree, murder in the second degree, manslaughter, or again, not guilty." (R. 291)

In regard to the lesser included offenses of first and second degree murder, the trial court's charge was correct. The subsections of the capital felony under which appellant was indicted, § 13-11-2(a)(6) and (13), punish "any murder" capitally regardless of degree, § 13-1-70 Code of Alabama 1975, if it was committed with proof of its attendant aggravating circumstance. If the jury found either aggravating circumstance to exist, namely that appellant had been convicted of first or second degree murder within the twenty years preceding the instant offense or that he was under a sentence of life imprisonment at the time of commission of the instant offense, then it had to determine whether the killing of Sanders was murder in either degree or manslaughter. If the jury found the killing to have been murder, then appellant could only have been found guilty of either capital offense. Conversely, if the jury determined that the killing constituted one of the degrees of murder, then it must find the existence of an aggravating circumstance in order to convict the appellant of a capital offense. We note that both aggravating circumstances were proven without contradiction. A defendant whose offense meets the aggravating requirements of either § 13-11-2(a)(6) or (13) must be found guilty of a capital offense if his killing is found to be murder. Therefore, the trial court properly instructed the jury that only if it did not find either of the aggravating circumstances could it then consider if appellant had committed one of the lesser included offenses.

The same cannot be said about the charge as it applies to the lesser included offense of first degree manslaughter. Theoretically, the jury could have found aggravating circumstances existed at the time of Sanders's death, and still have determined the killing was not a murder. This is because first degree manslaughter is not "any murder," as that language is used in § 13-11-1(a)(6) and (13). Thus, the trial court's oral charge created a condition precedent to consideration of the lesser included offense of first degree manslaughter, which was technically incorrect. However, the error does not result in reversible error unless it "has or probably has affected the substantial right of the appellant." A.R.A.P. 45A.

Thus, resolution of the issue revolves around whether the evidence would support the giving of a charge on first degree manslaughter.

The trial court properly charged the jury that the difference between second degree murder and first degree manslaughter was the omission of the element of malice in manslaughter. Consequently, if the evidence supports a finding of malice, then the trial court had no duty to charge on first degree manslaughter.

In Lowery v. State, 294 Ala. 347, 348, 317 So.2d 360, 361 (1975), malice was defined as "a wrongful act purposefully done and without just cause or legal excuse." This court, in Commander v. State, 374 So.2d 910, 918-19 (Ala.Cr.App.1978), cert. denied, 374 So.2d 921 (Ala.1979), in discussing the element of malice, stated:

"Malice aforethought cannot be given a literal interpretation and has acquired a strictly technical definition and comprehends a number of different conditions of mind. It is said to include all those states and conditions of mind which accompany a homicide committed without legal excuse or extenuation. Malice aforethought may be regarded as the mental state of a person voluntarily doing an act which ordinarily will cause serious injury or death to another without excuse or justification. While actual hatred or enmity may be present, malice is not limited in its meaning to hatred, ill will, or malevolence. Moreover, malice aforethought may exist although there is no particular enmity or ill will toward the victim and even though there is no specific intent to take human life.

"If the defendant had voluntarily committed an act which in the ordinary course of events would or might cause death or serious bodily harm, he is liable for murder although he did not actually intend that death should follow.

"Malice as an essential characteristic of the crime of murder may be either express or implied.

"Express malice is defined as an intent either to kill or do serious bodily harm or with reckless disregard of the consequence of the act, to do any cruel act which results in death.

"Generally, however, implied malice may be regarded as the equivalent of the phrase 'constructive malice.' That is, malice as such does not exist but the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist. R. Anderson, Wharton's Criminal Law and Procedure, §§ 242, 244, 245 (10th ed. 1957).

"In this state, second degree murder embraces those homicides in which malice was implied at common law and also those attended with evidences of express malice. Fields [v. State ], 52 Ala. at 352.

"Because the condition of a man's mind or heart is rarely the subject of direct and positive proof,

" 'Malice is said to be implied where there is no deliberate mind and formed design to take life, but where the killing, nevertheless, is done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter. It is sometimes said that malice is implied where no considerable provocation appears, or where all the circumstances show an abandoned or malignant heart. However, it is not necessary that this condition of mind or heart be characteristic of the slayer; malice, in its legal sense may exist without actual intention of any mischief, if the killing is the actual consequence of the commission of an act, capable of doing great bodily harm, so carelessly, recklessly, or wantonly as to evidence depravity of mind and disregard for human life, although there is no actual design or intention to encompass death. 40 Am.Jur.2d, Homicide § 51.' "

See also Clark v. State, 333 So.2d 885 (Ala.Cr.App.), cert. denied, 333 So.2d 890 (Ala.1976).

Malice is an essential ingredient of murder. As a general rule, it is an inferential fact not susceptible of positive or direct proof. It arises by inference from other facts proven, such as the character of the assault, the facts and circumstances surrounding the offense, and other attendant circumstances. Steele v. State, 389 So.2d 591 (Ala.Cr.App.1980); Strong v. State, 52 Ala.App. 237, 291 So.2d 325 (1974).

In Sanders v. State, 392 So.2d 1280, 1283 (Ala.Cr.App.1980), this court quoted with approval the following from F. Wharton, The Law of Homicide § 151 (3d ed. 1907):

"Where the intent to kill appears from the circumstances preceding or connected with the homicide there can be no question of implied malice. And it has been held that an act the natural consequence of which is death, when unexplained, is evidence in itself of the preconceived intention and deliberation necessary to constitute murder in the first degree."

As stated in Diamond v. State, 219 Ala. 674, 676, 123 So. 55, 57 (1929):

"[W]hen a person enters into combat with another, intending no more serious injury than an ordinary battery, and no weapon is used, and death ensues, the person thus causing death, if his acts were wrongful or unlawful, and nothing more appears, would be guilty of no higher grade of homicide than manslaughter in the first degree. Still, if the force used is excessive and the assault is brutal, malice may be inferred which would raise the grade of the offense to murder. (Citations omitted; emphasis added).

See also Higdon v. State, 367 So.2d 991 (Ala.Cr.App.1979).

Once a prima facie case of murder is established, no burden of proof shifts to the defendant to establish that the killing was manslaughter, i.e., he does not have to prove an absence of malice. Mitchell v. State, 342 So.2d 927 (Ala.Cr.App.), cert. denied, 342 So.2d 933 (Ala.1977). Likewise, the state has no burden of proving the lack of an excuse for the commission of a homicide. Every killing is unlawful unless expressly excused or justified by law; once a homicide is shown, the defendant must prove...