McPherson v. State

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

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 &amp 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: "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 affirmatively advised that the defendant could only be adjudged guilty of the higher grade of murder, or, on the other hand, adjudged innocent, and hence discharged. City Council, etc., v. Gilmer, 33 Ala. 116, 133, 134, 70 Am.Dec. 562; Tyree v. Parham, 66 Ala. 424, 432; Hayes v. Solomon, 90 Ala. 520, 522, 7 So. 921; Moore v. State, 40 So. 345, 346 ^[1]; Phoenix Ins. Co. v. Moog, 81 Ala. 335, 1 So. 108. If the amendment of the cited statute has not wrought the change indicated, the matter is not, under the decisions of this court, debatable. We have consulted the original transcript in Brown v. State, 109 Ala. 70, 20 So. 103, and find that the action of the trial court here sought to be reviewed was saved by appropriate and serviceable exception to the oral charge of the trial court; and the opinion in Gafford's Case, 125 Ala. 9, 28 So. 406, recites that the defendant reserved an exception to that part of the charge which violated the duty imposed upon the court by what is now Code, § 5362, and by section 5364 before its amendment in 1915. In City Council, etc., v. Gilmer, supra, it was said:

"The two charges given by the court of its own motion were not excepted to until after the jury retired. There are many authorities which hold that an exception to the charge of the court may be taken at any time before the jury return their verdict; but we adopt the rule that the exception must be taken before the jury leave the bar, because it is supported by respectable authorities, has been for a long time universally recognized in practice in this state, and seems to rest upon a good reason. The reason is that the court may have, at the time of giving the charge, an opportunity 'for reconsidering and explaining it more fully to the jury.' *** The two charges given by the court of its own motion are therefore not before us for revision."

Code, § 5364, as amended (Gen.Acts 1915, pp. 815, 816), has wrought no change in the theretofore established practice with respect to the necessity to seasonably, appropriately reserve conceived errors in the instructions of juries, by the trial courts, ex mero motu, in order to present the matter for review. The only provisions of that statute, as amended relating to the "general charge" of the court, are these: (a) Averting reversible error in the refusal of an instruction requested by a party when the "same rule of law was substantially and fairly given to the jury in the court's general charge"; (b) the requirement that the "general charge" shall be set out in the transcript; (c) requiring the reduction of the "general charge" of the court to writing, or that it be taken down by the court reporter as it is delivered to the jury. None of these provisions contemplate or intend the charge of the rule that errors in the "general charge" of the court shall be seasonably, appropriately excepted to pending the trial. The statute as amended does affirmatively avert the necessity, as under the previous practice, to include in the bill of exceptions special instructions, given or refused, requested by the parties; but this provision of the amended statute has no application to the "general charge" of the court, delivered ex mero motu. There is no provision in the statute making the "general charge" of the court a part of the record proper. In the statute before its amendment, likewise in the amended statute, it was provided that given or refused instructions, requested by the parties, became a part of the record when appropriately indorsed by the presiding judge, but even then it was the established rule that review of the action of the court in giving or refusing such requested instructions could not be had unless they were incorporated in the bill of exceptions. ...