Nelson v. State, 6 Div. 418

CourtAlabama Court of Criminal Appeals
Writing for the CourtALMON
Citation50 Ala.App. 285,278 So.2d 734
PartiesDavid Larry NELSON v. STATE.
Docket Number6 Div. 418
Decision Date17 April 1973

Page 734

278 So.2d 734
50 Ala.App. 285
David Larry NELSON
v.
STATE.
6 Div. 418.
Court of Criminal Appeals of Alabama.
April 17, 1973.
Motion Denied May 29, 1973.

[50 Ala.App. 286]

Page 735

Swatek & Bell, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and George M. Van Tassel, Jr., Asst. Atty. Gen., for the State.

HARRIS, Judge.

The judgment entry recites that appellant was arraigned upon an indictment charging murder in the first degree and was convicted of murder in the second degree and punishment fixed at imprisonment in the penitentiary for a term of twenty-five (25) years. Appellant is now at servitude.

Omitting the formal parts, the indictment reads as follows:

'The Grand Jury of said County charge that, before the finding of this indictment, DAVID LARRY NELSON unlawfully, and with malice aforethought, Killed Oliver King against the peace and dignity of the State of Alabama.' (Emphasis added.)

From the record it does not appear that the sufficiency of this indictment was questioned by demurrer, motion to exclude the state's evidence, nor a request for the affirmative charge. It is not noticed in briefs filed here by either party. Is the omission of any attempt to set out the Quo modo in the above indictment such a defect in substance that it will not support the judgment of conviction? We answer in the affirmative and reverse the case.

At common law it was necessary to set forth in an indictment for murder the Means by which an offense was committed. Hornsby v. State, 94 Ala. 55, 10 So. 522; Cozart v. State, 42 Ala.App. 535, 171 So.2d 77. The requirements of the common law as to averments of the means by which a homicide is committed has been retained under our statutory scheme and procedure. Title 15, Sections 241 and 242, Code of Alabama 1940. Wilson v. State, 243 Ala. 1, 8 So.2d 422.

[50 Ala.App. 287] In Albright v. State, 50 Ala.App. ---, 280 So.2d 186, 1973, this Court said:

'While the means with which a homicide is committed is not a constituent element of the offense, the omission to aver the means employed, though a defect of substance, and not one of form, is such a defect as must be taken advantage of by demurrer. Gaines v. State, 146 Ala. 16, 41 So. 965; Huckabee v. State, 159 Ala. 45, 48 So. 796. Where the means is unknown it is proper to allege in the indictment 'by some means to the grand jury unknown'. Eatman v. State, 139 Ala. 67, 36 So. 16; McDonald v. State, 241 Ala. 172, 1 So.2d 658.'

Title 15, Section 259, Code of Alabama 1940, form 79, is prescribed for murder in the first degree:

'A.B. unlawfully, and with malice aforethought, killed C.D., by shooting him with a gun or pistol, etc. (or by striking him with an iron weight, or by throwing him from the top of a house, or by pushing him into the river, whereby he was drowned, etc., as the case may be).' (Emphasis added.)

The general statute relating to indictments, Title 15, Section 232, Code of Alabama 1940, says:

'The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment; and in no case are the words 'force of arms' or 'contrary to the form of the statute' necessary.'

In Gayden v. State, 38 Ala.App. 39, 80 So.2d 495, Presiding Judge Carr, speaking for the Court, said:

'The constitutional right of an accused to demand the nature and cause of his accusation is not a technical right, but is

Page 736

fundamental and essential to the guaranty that no person shall be deprived of his liberty except by due process of law, nor be twice put in jeopardy for the same offense.

'An indictment should be sufficiently specific in its averments in four prime aspects to afford this guaranty: (1) To identify the accusation or charge lest the accused should be tried for an offense different from that intended by the grand jury. (2) To enable the defendant to prepare for his defense. (3) That the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense. (4) To enable the court, after conviction to pronounce judgment on the record.

'This protection which the law furnishes to one charged with crime has not been relaxed or relented by our courts throughout its history.

'The law does not contemplate that a person charged with crime should be brought to trial and stand before the courts of our land unaware or in doubt of the nature and character of the accusation against him.'

This case went to the Supreme Court by way of certiorari, Gayden v. State, 262 Ala. 468, 80 So.2d 501. There, Mr. Justice Simpson, speaking for the majority, said:

'Indictments must always conform to the mandates of our organic law. The emphasis in our cases 'that in all criminal prosecutions, the accused has the right * * * to demand the nature and cause of the accusation' now § 6 of the Constitution of 1901--is not meaningless tautology, but one of the cornerstones of our Bill of Rights.

'We are further restrained in this case by the requirements of the Fourteenth Amendment to the Constitution of the United States. The following utterances [50 Ala.App. 288] by our Federal courts are pertinent: 'No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.' Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. 'The petitioner charged that he had been denied any real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process * * *.' Smith v. O'Grady, Warden, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859. 'An intelligent and full understanding by the accused of the charge against him is a first requirement of due process.' Bergen v. United States, 8 Cir., 145 F.2d 181, 187.

'Regardless of some ill-considered, loose expressions in some of the cases, the law is and always has been that it is not enough to charge against a defendant a mere legal conclusion as justly inferential from facts...

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19 practice notes
  • Ex parte State of Alabama. ,., 1080395.
    • United States
    • Supreme Court of Alabama
    • August 21, 2009
    ...repeating: "`Failure to charge an offense is the kind of defect involved in due process of law and it cannot be waived. Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (1973). Although the law does not compel a "ritual of words" in an indictment, "[t]he omission of an element of the crime, ......
  • Ex parte State, No. 1080395 (Ala. 8/21/2009), 1080395
    • United States
    • Supreme Court of Alabama
    • August 21, 2009
    ...repeating: "'Failure to charge an offense is the kind of defect involved in due process of law and it cannot be waived. Nelson v. State, 50 Ala. App. 285, 278 So. 2d 734 (1973). Although the law does not compel a "ritual of words" in an indictment, "[t]he omission of an element of the crime......
  • Poole v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 31, 2001
    ...shall be deprived of his liberty except by due process of law, nor be twice put in jeopardy for the same offense."); Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (Ala.Crim.App.1973); Young v. State, 348 So.2d 544, 546 (Ala.Crim.App.1977) ("We must be ever mindful that the right of an acc......
  • Nelson v. State, 6 Div. 944
    • United States
    • Alabama Court of Criminal Appeals
    • February 26, 1980
    ...was reversed for the failure of the indictment to state the means, or quo modo, by which the crime was committed. Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 We find no basis for recusal. "A judge's participation in the trial of a defendant for another crime does not, without more, furn......
  • Request a trial to view additional results
19 cases
  • Ex parte State, No. 1080395 (Ala. 8/21/2009), No. 1080395
    • United States
    • Supreme Court of Alabama
    • August 21, 2009
    ...repeating: "'Failure to charge an offense is the kind of defect involved in due process of law and it cannot be waived. Nelson v. State, 50 Ala. App. 285, 278 So. 2d 734 (1973). Although the law does not compel a "ritual of words" in an indictment, "[t]he omission of an element of the crime......
  • Ex parte State of Alabama. ,., 1080395.
    • United States
    • Supreme Court of Alabama
    • August 21, 2009
    ...repeating: "`Failure to charge an offense is the kind of defect involved in due process of law and it cannot be waived. Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (1973). Although the law does not compel a "ritual of words" in an indictment, "[t]he omission of an element of the crime, ......
  • Poole v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 31, 2001
    ...shall be deprived of his liberty except by due process of law, nor be twice put in jeopardy for the same offense."); Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (Ala.Crim.App.1973); Young v. State, 348 So.2d 544, 546 (Ala.Crim.App.1977) ("We must be ever mindful that the right of an acc......
  • Nelson v. State, 6 Div. 944
    • United States
    • Alabama Court of Criminal Appeals
    • February 26, 1980
    ...was reversed for the failure of the indictment to state the means, or quo modo, by which the crime was committed. Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 We find no basis for recusal. "A judge's participation in the trial of a defendant for another crime does not, without more, furn......
  • Request a trial to view additional results

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