McPherson v. State, 4 Div. 611

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, J.
• Citation: 198 Ala. 5,73 So. 387
• Parties: McPHERSON v. STATE.
• Docket Number: 4 Div. 611
• Decision Date: 30 June 1916

73 So. 387

198 Ala. 5

McPHERSON
v.
STATE.

4 Div. 611

Supreme Court of Alabama

June 30, 1916

Rehearing Denied Dec. 30, 1916

Appeal from Circuit Court, Covington County; A.B. Foster, Judge.

John McPherson was convicted of murder in the first degree, and appeals. Affirmed.

Mayfield and Thomas, JJ., dissenting.

Parks & Prestwood, of Andalusia, for appellant.

W.L. Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

McCLELLAN, J.

On the night of November 6, 1897, Wade Childee was assassinated while he was sitting near a window, in his dwelling, reading. He was shot in the back of the head, dying a short time thereafter. The weapon used was a pistol. Whether the appellant was the guilty agent was the inquiry submitted to the jury's determination on a trial had about 18 years after the assassination of Childee. There was evidence inviting the jury's judgment that the appellant was the assassin, and there was evidence inviting the conclusion that he was entirely innocent. The conviction is of murder in the first degree, the penalty imposed being life imprisonment.

In the instruction of the jury by the court, ex mero motu, the jury was affirmatively advised that the defendant was either guilty of murder in the first degree, or was innocent and due to be acquitted; the jury being further advised that, if the defendant was found guilty, they should impose the penalty of death or life imprisonment, the penalties fixed by law for that grade of offense. No exception to the oral charge of the court appears to have been taken or reserved for or by the defendant. No special charge appears to have been requested for or by the defendant relating to the matter of the guilt vel non of the defendant of murder in the second degree or any other less degree of homicide. The partial or total failure or omission of a trial court to instruct a jury in its oral charge with reference to principles or rules of law that may be, or even are, involved in the trial, cannot be made the basis for a reviewable question on appeal. Williams v. State, 147 Ala. 10, 25, 41 So. 992; Jones v. State, 174 Ala. 85, 93, 57 So. 36. The party's remedy in such cases of mere failure or omission is to request special written instructions according to the practice established by the statutes. Code, § 5362, and section 5364 as amended by the act approved September 25, 1915 (Gen.Acts 1915, p. 815); Williams v. State, supra; Jones v. State, supra.

The only argument made by appellant's counsel for error in the judgment is predicated of the matter before mentioned.

No assignment of errors is required for appeals in criminal cases; and the appellate court is required to "consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands." Code, § 6264.

Code, § 5364, was amended by the act set forth in Gen.Acts 1915, p. 815, so as to read as follows: [73 So. 388] "Charges moved for by either party must be in writing, and must be given or refused in the terms in which they are written; and it is the duty of the judge to write 'given' or 'refused,' as the case may be, on the document, and sign his name thereto; which thereby becomes a part of the record, and charges which are given must be taken by the jury with them on retirement, and those refused must be retained by the clerk. The court shall after the conclusion of his charge to the jury read such written charges as he has given for the parties in a clear and audible voice, saying to the jury, 'these are instructions given you by the court at the request of the plaintiff or defendant, as the case may be, and are correct statements of the law to be taken by you in connection with what has already been said to you.' The refusal of a charge though a correct statement of the law shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge or in charges given at the request of parties. In case of appeal the charges must be set out in the transcript in the following manner: (1) The charge of the court. (2) The charges given at the request of the plaintiff or the state. (3) The charges given at the request of the defendant. (4) The charges refused to the appellant. It shall not be necessary to set out the charges in the bill of exceptions or state therein that an exception was reserved to the giving or refusing of charges requested, but it shall be presumed that each charge was separately requested and a separate exception reserved as to the giving or refusal thereof. Every general charge shall be in writing, or be taken down by the court reporter as it is delivered to the jury."

Code, § 5362, provides:

"The court may state to the jury the law of the case and may also state the evidence when the same is disputed but shall not charge upon the effect of the testimony, unless required to do so by one of the parties."

This court has ruled that the statute (Code, § 7087) imposes a duty on the trial courts to instruct the juries hearing prosecutions under indictments charging murder in the first degree upon the law of murder in both the first and second degree. Brown v. State, 109 Ala. 70, 20 So. 103; Parham v. State, 147 Ala. 57, 68, 42 So. 1; Gafford v. State, 125 Ala. 1, 28 So. 406. See, also, Williams v. State, 130 Ala. 107, 113, 30 So. 484, modifying the Brown and Gafford Cases.

The primary inquiry governing the single matter urged for error in brief for the appellant is whether the subject of the argument for error was saved or reserved for review by this court. Unless the rule has been changed by the above-quoted amendment of Code, § 5364, the defendant was obliged, if he would have review of the matter of complaint on appeal, to reserve an exception, pending the trial and before the jury retired, to the oral charge of the court, delivered ex mero motu, whereby the jury was...