Maxwell v. State

• Decision Date: 30 April 1890
• Citation: 7 So. 824,89 Ala. 150
• Parties: MAXWELL v. STATE.
• Court: Alabama Supreme Court

7 So. 824

89 Ala. 150

MAXWELL v. STATE.

Supreme Court of Alabama

April 30, 1890

Appeal from criminal court, Jefferson county; S.E. GREENE, Judge.

Indicted for murder. Pleas, not guilty, and not guilty by reason of insanity. The defendant offered evidence tending to show that 10 days before the killing, at his home, in a secluded place on the mountain-side, a criminal assault was made on his wife by the deceased.

The defendant requested the following charges, and duly excepted to the refusal of each: "(1) If the jury believe from the evidence that the defendant, at the time when the fatal shots were alleged to have been fired, was so far affected in his mind and memory that he was not able to distinguish right from wrong, and had not knowledge and understanding of the character and consequences of his act, and power of will to abstain from it, then he was not a legally responsible being and the jury should find him not guilty. (2) In order to sustain the defense of insanity it is not necessary that the insanity of the accused be established by a preponderance of evidence. If, on the whole evidence, the jury entertain a reasonable doubt as to the sanity of the accused, they must acquit him. (3) While the law presumes every man to be sane and responsible for his acts, until the contrary appears from the evidence, still if there is evidence in the case tending to rebut this presumption, sufficient to raise a reasonable doubt upon the issue of sanity, then the burden of proof is on the state to show by the evidence, beyond a reasonable doubt, that the defendant was sane at the time the alleged offense was committed. (4) To warrant a conviction in this case, it is incumbent on the state to establish by evidence to the satisfaction of the jury, beyond a reasonable doubt the existence of every element necessary to constitute the crime charged; and if the jury, after a careful and impartial examination of all the evidence in the case bearing on the question of sanity or insanity, entertain any reasonable doubt of the defendant's sanity at the time of the alleged offense, they should give him the benefit of that doubt, and acquit him. (5) Before the jury can convict the defendant in this case, they must be satisfied beyond a reasonable doubt, and to a moral certainty, that he committed the act, and that he has not established his plea of insanity by a preponderance of the evidence. (6) A probability that the defendant was insane at the time of firing said shots, or was unable to distinguish between right and wrong as to the act he was committing, or had not the will power to control him, then the jury must find him not guilty. (7) A probability of the defendant's innocence is a just ground for a reasonable doubt, and therefore for his acquittal."

W. L. Martin, Atty. Gen., for the State.

MCCLELLAN J.

1. The act of February 28, 1887, "To more effectually secure competent and well-qualified jurors in the several counties in this state, "undertook to establish a general jury system throughout the state, and was made to apply to all the counties of the state, with a proviso excepting from its operation certain ' named counties, among which were Clay and Marengo. Jefferson was not one of the excepted counties. The seventeenth section of the act is in the following language: "Be it further enacted, that section 4732 of the Code of Alabama, and all other laws and parts of laws, general and special, conflicting with the provisions of this act, be, and the same are hereby, repealed; but all laws now in force in relation to jurors, their drawing, selecting, or qualification, not in conflict with this act, are hereby continued in full force and effect. But the provisions of this act shall not apply to the counties of Henry, Mobile Dallas, Talladega, Clay, Marengo, Cherokee, Etowah, St. Clair, Coffee, Dale, Geneva, Marshall, and Montgomery."

2. The legislature, at its next session, passed an act "To expedite the trial of capital cases in Jefferson county," which was approved February 11, 1889. This act provided a mode for the drawing, summoning, and impaneling special jurors for the trial of capital cases, differing in several respects from the mode prescribed in the general law referred to, prescribed the number of peremptory challenges to be allowed the state and defendant, respectively, and repealed "all laws, general and special, in conflict with" its provisions, and expressly continued in full force and effect all laws, general and special, not in conflict. Acts 1888-89, p. 324. The effect of this statute was, of course, to repeal all the provisions of the act of 1887 which were in conflict with it, so far as Jefferson county was affected thereby.

3. At the same session (1888-89) of the general assembly, it was considered that the act of 1887 was defective, and needed amendment in its 3d, 6th, 13th, and 17th sections; and on February 28, 1889, an act "To amend sections 3, 6, 13, and 17 of an act entitled 'An act to more effectually secure competent and well-qualified jurors in the several counties of this state,"' was passed. The changes made by the amendatory act are the following: Section 3 of the original act required that jurors should be selected from the male residents, etc., "who are householders or freeholders," etc. The amendment eliminates the words quoted, and allows the selection to be made without reference to householders or freeholders. Section 6 of the original act, among other things, provided that the president of the board of jury commissioners should keep the key to the jury-box; and the amendment requires that the key should be deposited with the county treasurer, and made certain verbal changes to accommodate this substantive amendment, and harmonize the section. Section 13 of the original act, while undertaking to deal generally with the subject of peremptory challenges, failed entirely to provide the number of such challenges which should be allowed in capital cases; and there was no provision on this point in the act. The amendment merely supplies that omission, and prescribes that the defendant in a capital case shall have 21, and the state 14, peremptory challenges. In effecting each of these several amendments, the sections to which they pertain were re-enacted, and published in full, agreeably to constitutional requirements; and this course was pursued, also, in respect to the amendment made to section 17 of the original act, which we have set out in full above. The sole change made in that section, aside from the mere verbal one incident to giving the section of the Code therein referred to the number it bears in the Code of 1886, was effected by omitting the counties of Clay and Marengo from among those excepted from the operation of the act, and thus bringing them within the statute. But in reaching this result the whole of section 17 was re-enacted, including its repeal of all conflicting laws, "general and special."

4. The special act of February 11, 1889, was, as we have seen, in conflict with the act of 1887 in several particulars, and in so far repealed the latter as to Jefferson county The amendatory act of February 28, 1889, is in conflict with the special act passed at an earlier day of the same session in the one particular as to the number of peremptory challenges to be allowed; the former allowing; as we have seen, 21 to the defendant and 14 to the state, and the latter only allowing the defendant 10 and the state 5. If section 3 of the amendatory act, which, with the exceptions noted, is a reproduction and re-enactment of the repealing section of the original act, is to receive a literal construction and enforcement, its effect must be either to repeal the special act in toto, or to repeal it in so far as there is a repugnancy, the one to the other. If the latter result is to follow, only that section of the special act which prescribes the number of peremptory challenges in capital cases will be stricken down, and the various other provisions of the act as to setting such cases for trial, and the drawing, summoning, and organizing special jurors and juries, etc., will be allowed to stand, provided these provisions are capable of being executed without the repealed section. Assuming for the moment that all other provisions of the special act are susceptible of operation and effect in the absence of that section, which is in conflict with the amendatory general statute, the first inquiry is whether the repealing clause of the latter act refers to statutes inconsistent with itself only, or to statutes in conflict with the original act of 1887 as amended by it; for, if the latter is the meaning we are to give to the repealing clause, it is very evident that no part of the special act can stand, since all of its provisions are, to a greater or less extent, inconsistent with the act of 1887. We do not, however, understand this to be the rule. The act of 1887, being repealed as to Jefferson county by, and so far as in conflict with, the special act, the amendment of some of its sections did not have the effect to revive it as applicable to that county, except in those parts of it which were so amended and re-enacted. The fact that a repealed statute is referred to in a subsequent one, the reference not being intended as a re-enactment, will not give it vitality; and "even where the later act attempts to amend an earlier one, previously repealed by implication, the copying of parts of the earlier act into the amendment was held not to re-enact it." End. Interp. St. § 372; Stingle v. Nevel, 9 Or. 62. Moreover, the constitutional requirement that "no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived,...