Oliver v. State

• Decision Date: 20 May 1937
• Docket Number: 5 Div. 232
• Citation: 234 Ala. 460,175 So. 305
• Parties: OLIVER v. STATE.
• Court: Alabama Supreme Court

175 So. 305

234 Ala. 460

OLIVER v. STATE.

5 Div. 232

Supreme Court of Alabama

May 20, 1937

Rehearing Denied June 28, 1937

Appeal from Circuit Court, Elmore County; Arthur Glover, Judge.

Arthur Oliver was convicted of first degree murder, and he appeals.

Affirmed.

W Howell Morrow, of Lanett, and Jacob A. Walker, of Opelika for appellant.

A.A Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

BOULDIN Justice.

Arthur Oliver was convicted of murder in the first degree and his punishment fixed at death. For decision on former appeal, see Oliver v. State, 232 Ala. 5, 166 So. 615.

On the second trial, now for review, the defendant interposed a plea of former acquittal of the charge under the counts of the indictment on which he was being tried. Demurrers to this plea were sustained. The basis of the plea was this:

The indictment charged the defendant with the murder of his wife, Vidie Oliver, in numerous counts. These counts varied in their averments of the means by which the alleged murder was committed. On the former trial, after the evidence was introduced, the solicitor, with the consent of the court, nol prossed counts 1, 2, 3, 6, and 8, and the trial proceeded to conviction, judgment, and sentence under counts 4, 5 and 7.

The nol prossed counts charged the wife was slain "by hitting her on the head with a stick," "by striking her with a stick," "by beating her with a stick," and "by beating her with a club," respectively.

The remaining counts charged the slaying "by striking her with a blunt instrument a more accurate description of said instrument being to the grand jury unknown," "by beating her with his fist," and "by striking her in the head with some hard substance, to the grand jury unknown, or by kicking her with his feet," respectively.

Under the constitutional guaranty "That no person shall, for the same offense, be twice put in jeopardy of life or limb" (Const. § 9), the entering of a nol pros as to some of the counts in the indictment, without the consent of the accused, and after the trial is entered upon and the accused put in jeopardy, operates on acquittal of the specific offenses provable under such counts. Illustrations of this principle are found in cases where an indictment joins in separate counts kindred offenses growing out of the same transaction, or charge of different degrees of the offense under the law. A nol pros of a count charging one of the kindred offenses, or a higher degree of an offense, after the accused is put in jeopardy, operates an acquittal just as if a verdict of non-guilty had been rendered as to such counts. 16 C.J. 248; Barnett v. State, 54 Ala. 579; Walker v. State, 61 Ala. 30; Blair v. State, 216 Ala. 463, 113 So. 414.

This case does not involve indictments of the class just mentioned.

Indictments for criminal homicide, in order to properly inform the accused of the nature of the offense charged, should aver the means by which the killing was accomplished, if known, or so far as known, with averments, such as appear in the counts remaining in this indictment, to the effect that the means are unknown further than as averred.

The proof must substantially conform to the averments on this point. Proof of means, not of like kind as that averred, is such a variance as to work a reversal of a conviction. 30 C.J. 134, § 339; page 101, § 289; Page 287, § 531; Huckabee v. State, 159 Ala. 45, 48 So. 796; Jones v. State, 137 Ala. 12, 34 So. 681.

The acquittal of a defendant because of variance does not prevent trial on a new indictment conforming to the case made by the evidence. The accused is held to have never been in jeopardy, since the crime charged is not the same in the sense that it is not sustainable by the same proof, as in the former indictment. 16 C.J. p. 243, § 380; Martha v. State, 26 Ala. 72.

This principle is recognized in our statute, Code § 4551, providing that, where no conviction can be had because of a variance, the defendant not consenting to an amendment, the prosecution may be dismissed before the jury retires, as to any count in the indictment to which the variance applies, and another indictment ordered.

There is no occasion for such new indictment, if that on which the trial is being had already contains counts as to which no variance arises.

In the instant case it would appear the solicitor concluded the evidence would not justify a verdict on counts charging beating or striking with a stick or club as the means of committing the crime, and chose to stand on the allegations of the remaining counts.

This was entirely permissible. It is not material whether there was some evidence on which the jury may have found a verdict of guilty, under the nol prossed counts, as well as under those which remained. The means alleged in the latter were broader.

Indeed, the logic of the whole matter, the prevention of a second jeopardy for the same offense, does not prevent going on with a trial under a valid indictment, because counts have been nol prossed. The accused is still in the same jeopardy, not twice in jeopardy, in one trial under the same indictment, or such counts thereof as the state chooses to retain. If two counts were identical, provable by the same evidence, there can be no sound reason why one may not be nol prossed to avoid prolixity, and the trial proceed under the other.

There is only one jeopardy, one hazard to life or limb for the one offense; that the judgment of conviction on that trial was reversed and vacated on appeal of defendant does not affect the question. It is not so insisted. There was no error in sustaining the demurrer to the plea of former jeopardy.

Appellant strongly urges as ground for several alleged improper remarks of the solicitor in the closing argument for the State, followed by cheering among the courtroom audience.

The record discloses the following:

"During the concluding argument of the Solicitor for the State the Solicitor made the following statement to the jury:

" 'Gentlemen of the Jury, Mr. Walker had something to say in his argument to you about Mr. Mullins' being associated with the prosecution of this case. Mr. Walker referred to him, not as a prosecutor, but as

a persecutor, and stated to you that he was here receiving blood money.'

"The defendant agrees that Mr. Walker, one of counsel for the defendant, had made substantially the statements in his argument to the Jury as stated by the Solicitor in his statement.

"Thereupon the Solicitor turned from the jury to Mr. Walker, one of the counsel for the defense, and said substantially as follows:

" 'Mr. Walker, when you speak of blood money I want to ask you what are you down here for, your health, in this hot court room?'

"Upon the above statement being made by the Solicitor there was in the court room hand clapping *** When this hand clapping began the Court of his own motion rapped for order and the hand clapping stopped and the Court of his own motion said:

" 'We must have order in court. Mr. Sheriff if another one commits any disorder bring him up here to me and we'll put him in jail where he will behave; and you and your deputies keep a lookout for anybody who commits any disorder.'

"Thereafter there was no disorder of any kind whatever in the trial."

Defendant moved that the cause be withdrawn from the jury and a mistrial entered. Motion overruled and exception reserved.

The court further said to the jury: "Gentlemen, I say this, you are to go by the evidence in this case, and the instructions of the court. Of course, you listen at the arguments, but what this audience does is not to affect your judgment in the matter."

Later in his oral charge, the court said: "Now, don't be affected or influenced in your judgment in the case by any clapping or demonstration that you have seen...