Lowery v. State, 3 Div. 227

• Decision Date: 01 October 1974
• Docket Number: 3 Div. 227
• Parties: William N. LOWERY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 357

317 So.2d 357

55 Ala.App. 511

William N. LOWERY, alias v. STATE.

3 Div. 227.

Court of Criminal Appeals of Alabama.

Oct. 1, 1974.

Rehearing Denied Oct. 29, 1974.

Frank W. Riggs, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and John D. Whetstone, Asst. Atty. Gen., for the State.

ALMON, Judge.

Appellant was convicted of murder in the second degree and sentenced to serve twenty years in the penitentiary.

There is no need to set out the facts of this case because of our conclusion that the judgment must be reversed because of the trial court's oral charge to the jury. Suffice it to say the shooting occurred at a Montgomery night club. There was ample evidence to submit the question of appellant's guilt to the jury.

The court in its oral charge to the jury gave the following definition of malice:

'Malice, in the common acceptation, malice means hatred or ill will toward another; but in law, malice means a wrongful act purposefully done and without just cause or legal excuse. Malice is an ingredient of murder. . . .'

Contrary to the above definition, malice is not an act; malice in law is a state of mind. The definition given to the jury was misleading. First degree manslaughter under certain circumstances could consist of a 'wrongful act purposefully done and without just cause of legal excuse.' Some of the jurors could have found the facts to be sufficient to constitute a crime no greater than first degree manslaughter and, under the circumstances, would be compelled to return a verdict of murder under the preceding definition of malice given by the trial court. The foregoing definition of malice seems to be the only attempt by the court to explain the term, either in his oral charge or in any of the requested charges. The appellant's counsel duly excepted to the oral charge in this particular.

The case of McGuffin v. State, 178 Ala. 40, 59 So. 635, is distinguishable on this point. There, it was said:

'There was no error in that part of the court's oral charge marked (1). 'Malice, in law, does not necessarily mean hate or ill will, but is defined as any unlawful act willfully done, without just cause or legal excuse. It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation.' (Emphasis ours)

The underlined portion of the excerpt from McGuffin clarifies any ambiguity in defining 'malice' as an act. It appears that this case is reversible for the erroneous definition of malice given by the trial judge.

Appellant further argues in brief that hospital records introduced at the trial were inadmissible under Tit. 7, § 383(1), Code of Alabama 1940, Recompiled 1958, because the records were mailed to the district attorney rather than to the circuit court clerk, and the further claim that some of the records were inadmissible as being illegible.

The obvious purpose of the statute in providing that the records be delivered to the clerk of the circuit court is to provide a uniform procedure. The statute providing for the mode of preparing, certifying, and of the delivery of the records is Tit. 7, § 383(2), Code, Supra. Appellant's argument appears too hypertechnical in view of the stipulation that the assistant district attorney imediately redelivered the records to the circuit clerk upon his discovery that the envolpe contained hospital records. The following stipulation appeared in the record:

"The following is stipulated between counsel:

"April 23, 1973.

"TO: Richard Jordan

"SUBJECT: Hospital records from University of Alabama Hospital in William Lowery--Parham case.

"The above records were received by mail in the District Attorney's Office by me. I did not know what was in the large brown...