Napier v. State, 1 Div. 29

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: LEIGH M. CLARK
• Citation: Napier v. State, 377 So.2d 1135 (Ala. Crim. App. 1979)
• Decision Date: 30 October 1979
• Docket Number: 1 Div. 29
• Parties: Damon Shelton NAPIER v. STATE.

Page 1135

377 So.2d 1135

Damon Shelton NAPIER v. STATE.

1 Div. 29.

Court of Criminal Appeals of Alabama.

Oct. 30, 1979.

Rehearing Denied Nov. 20, 1979.

Reginald H. Stephens, Michael Scheuermann, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Retired Circuit Judge.

This case is between the same parties and relates to the same victim of an alleged homicide by defendant as Napier v. State, Ala.Cr.App., 357 So.2d 1001 (1977), rev'd, Ala., 357 So.2d 1011 (1978), on remand, Ala.Cr.App., 357 So.2d 1014 (1978).

In the cited case defendant had been convicted of murder in the first degree of David Archie Owings. His conviction was affirmed by this Court, but this Court's decision was reversed by the Alabama Supreme Court, which held that the evidence was not sufficient to sustain a conviction of murder in the first degree. On authority of the Alabama Supreme Court, this Court reversed the judgment and remanded the cause. In the opinion of the Alabama Supreme Court at 357 So.2d 1013, it is stated:

". . . Therefore, we do not have before us the question of whether a conviction of manslaughter or a lesser degree of murder would be sustained. The only issue before us is whether a first degree murder conviction based upon the universal malice doctrine provided for in Title 14, § 314, Code, can be sustained under the evidence in this case."

On November 10, 1978, a new indictment was returned against defendant for the same alleged homicide, but the indictment charged murder in the second degree. At the conclusion of the trial on the second indictment, the trial court, contrary to the insistence of the State, declined to submit the issue of murder in the second degree and submitted the case to the jury on the issues as to manslaughter in the first degree and manslaughter in the second degree only. The jury found defendant guilty of manslaughter in the first degree and fixed his punishment at ten years imprisonment, and he was sentenced accordingly.

The facts set forth in the opinion of the Court of Criminal Appeals in Napier, supra, are substantially the same as found in the evidence on the trial from which this appeal is taken. In referring thereto, the Supreme Court said at 357 So.2d 1012.

". . . The facts are fully set out in the opinion of the Court of Criminal Appeals. Napier v. State, 357 So.2d 1001 (1977), and do not need to be restated in detail here. Basically, the State charged Napier with first degree murder of David Archer Owings, who died as a result of two self-administered injections of heroin given to him by the petitioner. . . ."

To emphasize the substantial sameness of the evidence on both trials, it should be stated that as to three of the eyewitnesses who testified in person on the first trial, they did not actually appear and testify on the second trial, but their testimony on the first trial was admitted in evidence on the second. It would be a waste of paper and of time to restate in detail the facts here.

Appellant urges that the evidence does not support a conviction of manslaughter in the first degree. He appears to attempt to obtain some support for such insistence from what was said by the Supreme Court in Napier, supra. He refers to a statement at 357 So.2d 1014:

". . . The evidence does not show that he intended any injury to Owings, nor does it show that he made any determination to cause what would probably be injury or harm to any other person. . . ."

That such statement furnishes no support to appellant's contention is clearly shown by the sentence that immediately follows in the opinion:

"Without such evidence, a conviction of murder in the first degree cannot be affirmed."

The difference, the only difference, between the two appellate courts in Napier, supra, was as to the existence Vel non of malice, particularly universal malice, an essential element of murder but not of manslaughter.

In arguing that there was no substantial evidence of voluntary manslaughter, appellant overlooks, or at least deemphasizes, the principle that a definite intent to take a life is not necessarily an ingredient of manslaughter in the first degree. Harrington v. State, 83 Ala. 9, 3 So. 425 (1888); Barnett v. State, 27 Ala.App. 277, 171 So. 293 (1936). A wanton killing is a voluntary killing within the definition of manslaughter in the first degree. Rainey v. State, 245 Ala. 458, 17 So.2d 687 (1944). Although some intent, some intentional wrongful conduct is essential to manslaughter in the first degree, so as to preclude simple negligence as sufficient, the actual intention to accomplish the fatal result is not necessary. True it is that an intent to kill is often an ingredient of manslaughter in the first degree, but it is only an alternative essential element. The other alternative is wantonness. Harrington v. State, supra; Barnett v. State, supra; Rainey v. State, supra; Gills v. State, 35 Ala.App. 119, 45 So.2d 44, cert. denied, 253 Ala. 283, 45 So.2d 51 (1950); Harris v. State, 36 Ala.App. 620, 61 So.2d 769 (1952).

There has been some confusion as a result largely of either a tendency at times to treat wantonness as a degree or kind of negligence, or a tendency to treat a wanton injury as an intentional injury. As to the one, we are reminded:

"Wantonness and negligence cannot exist in the same act or omission, for the reason that wanton or wilful misconduct implies mental action; whereas that fact is absent in mere negligence. Wantonness and negligence are hence necessarily distinct colorings of a wrong to another's injury. Louisville & Nashville R. Co. v. Smith, 163 Ala. 141, 150, 151, 50 So. 241." Thompson v. White, 274 Ala. 413, 420, 149 So.2d 797, 804 (1963).

As to the other misconception, confusion is avoided by a strict adherence to the uniformly accepted principle in Alabama that wantonness occurs (and occurs only) when one is conscious of his conduct, and conscious from his knowledge of existing circumstances and conditions, that injury will likely result from his conduct, and, with reckless indifference to consequences, he consciously and intentionally does some wrongful act or omits some known duty which produces injury. Zemczonek v. McElroy, 264 Ala. 258, 268, 86 So.2d 824 (1956); Birmingham Ry. Light & Power Co. v. Drennen, 175 Ala. 338, 346, 57 So. 876 (1911).

The evidence was sufficient to support the verdict of manslaughter in the first degree.

Appellant complains, as defendant complained on the trial, of the court's allowing, over defendant's objection, the State to introduce in evidence the testimony of three witnesses on the previous trial. Appell...