McIntosh v. State

• Citation: 33 Ala.App. 534,36 So.2d 109
• Decision Date: 06 April 1948
• Docket Number: 4 Div. 43.
• Parties: McINTOSH v. STATE.
• Court: Alabama Court of Appeals

36 So.2d 109

33 Ala.App. 534

McINTOSH v. STATE.

4 Div. 43.

Alabama Court of Appeals

April 6, 1948

Rehearing Denied May 11, 1948.

J C. Fleming, of Elba, for appellant.

A A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

The following charges were refused to defendant:

1. 'The Court charges that if the jury is reasonably satisfied from the evidence that the defendant was at the time of the burglary as charged in the indictment, in such mental condition, whether caused by intoxication or otherwise, that he had lost the power of control of the will and was incapable of forming a design, then the jury would not be authorized under the law to convict the defendant as charged in either Count of the indictment.'

6. 'The defendant is authorized under the statute, to testify in his own behalf, and the jury have a right to give full credit to his statements.'

7. 'Unless the evidence against the prisoner should be such as to exclude to a moral certainty every hypothesis but that of his guilt of the offense imputed to him, they must find the defendant not guilty.'

9. 'If you would not be willing to act upon the evidence in this case if it was in relation to matters of the most solemn importance to your own interest, then you must find the defendant not guilty'.

CARR, Judge.

The appellant was indicted and convicted of burglary in the first degree. Title 14, Sec. 85, Code 1940.

The only question presented for our review is the action of the lower court in refusing to the accused certain written instructions. This is frankly admitted by appellant's counsel.

Refused charge numbered 1 is misleading by the inclusion of the words 'or otherwise.' The defendant did not claim to be drunk on the occasion in question. He did admit that he was drinking, and there was other evidence tending to establish this fact. He denied that he went in the dwelling and gave evidence describing his whereabouts which if the jury had accepted would have exonerated him from the commission of the offense.

In any event, under any aspect of the evidence, if the accused was in any manner mentally incapacitated, the cause was attributable to intoxication and not 'otherwise.' The charge, therefore, contained an abstract premise.

A similar charge was given by the trial judge in Dyer v. State, 241 Ala. 679, 4 So.2d 311. The Supreme Court did not expressly approve the instruction, but held that in giving the charge the court was not in error for refusing another charge.

All of this aside, the court fully covered the matter in his oral instruction to the jury. He said:

'Now there has been introduced in this case evidence as to the defendant being intoxicated, or having taken some drinks of intoxicating liquor. Ordinarily, voluntary intoxication is no defense against any crime. A person can't go out of his own volition and make himself drunk and commit a crime, then claim it was justifiable or excusable because he was drunk. However, we do have some classes of crimes where the mental intent is one of the essentials, as in this case, there must exist an intent on the part of the person breaking to steal something in the house. Now, if the defendant is the person who broke into that house, if he did it in the nighttime, and it was occupied as alleged in the indictment, if he was so intoxicated,--had consumed alcoholic liquors to such extent that his mind was incapable of forming any kind of intent, if he became an irrational being and couldn't possibly form the intent in his mind to do anything, whether to commit larceny, steal or do anything else, why that would be sufficient to establish the fact that no burglary was committed. That is to say, Gentlemen of the Jury, that if a defendant has lost his mental processes, if his brain is so overwhelmed with alcohol that he can't form the specific intent to commit a crime such as larceny,--he can't rationalize so as to form an intent, then he cannot be guilty of burglary; but unless his mind was so overwhelmed with alcohol as to prevent him from rationalizing, from forming a mental intent, he would be guilty if he was the person who did it.' Title 7, Sec. 273, Code 1940.

There was no error in the refusal of charge numbered 6. Greer v. State, 156 Ala. 15, 47 So. 300; Sanderson v. State, 236 Ala. 27, 181 So. 508; Bryant v. State, 116 Ala. 445, 23 So. 40; Sanford v. State, 2 Ala.App. 81, 57 So. 134.

In some of the early cases refused charge...