Payne v. State, 3 Div. 159

• Decision Date: 17 June 1980
• Docket Number: 3 Div. 159
• Citation: 391 So.2d 140
• Parties: James W. PAYNE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 140

391 So.2d 140

James W. PAYNE v. STATE.

3 Div. 159.

Court of Criminal Appeals of Alabama.

June 17, 1980.

Rehearing Denied July 29, 1980.

Vaughan H. Robison of Robison & Belser, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., Helen P. Nelson, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant was tried on an indictment charging him with murder in the first degree of Clyde Davis, "by shooting him with a pistol." A jury found him guilty of murder in the second degree and fixed his punishment at imprisonment for fifteen years, and the court sentenced him accordingly.

As we find it necessary to reverse the judgment by reason of a single erroneous error of the able and distinguished trial judge, we deem it appropriate to use as a factual background the Statement of Facts appearing in appellee's brief, even though to some extent there is a variance between it and appellant's brief. Appellee's complete statement of the facts contained in its brief under the caption STATEMENT OF THE FACTS is as follows:

"Early in the morning of April 15, 1979, the Appellant and three other persons, Larry Garner, William J. Venable and Phil Payne, were riding around in Appellant's automobile. Around 2 a.m. they drove to Gowan's Truck Stop and parked in the front.

"The purpose of going to the truck stop was to advise the persons who worked there that Appellant's service station would be closed on Easter day but that the service vehicles would be available. Upon arriving at the truck stop, Garner went inside to give this information to the people there. The others remained in the car.

"While sitting in the car, a conversation took place on the C.B. radio between the Appellant and a truck driver parked at the truck stop. Venable, a witness for the State, testified that the first time he paid any attention to the conversation the truck driver was 'talking back to Mr. Payne and said words to the effect that if he would bring his white MF. a around front, he would set it on fire.' He then heard Appellant say 'I'm fixing to show my G d d a .'

"Another witness for the State, a police officer, John Wilson, testified that he had heard a conversation between Appellant and another party on Channel 19 on his C.B. radio. He heard Appellant call the truck driver a 'black son of a b ' and the truck driver responded 'you white honky M.F.' He recalled the Appellant asking the truck driver if he could meet him some where. He said the truck driver stated that 'he had a weapon in the truck and that if Mr. Payne came out there that he would shoot him.' and Appellant responded that 'if the truck driver would come out on the street he would in return shoot him.' He heard the other party say that he was in a red Wiley Sanders tractor trailer rig parked at the Gowan's Truck Stop parking lot. Appellant said he was in a green Continental.

"Appellant denied this conversation saying the only conversation he had with the deceased was that he told him to get off the C.B. and the truck driver said 'I'm going to set your a on fire.'

"After Garner came out of the truck stop and got back in the car, the Appellant drove over to the truck where the truck driver was at. As he drove alongside the truck the truck driver's door was thrown open and shots fired. Appellant also fired. Appellant fired the shot that killed the truck driver (the alleged victim)."

The only issue raised by appellant is as to defendant's exception to a portion of the court's oral charge. In its oral charge the court charged the jury as to murder in the first degree, murder in the second degree, manslaughter in the first degree and manslaughter in the second degree. An exception was taken to a part of the court's oral charge while instructing the jury on murder in the second degree. It was as follows:

"A killing by a fight and single combat, commonly called a duel, with deadly weapons is also murder in the second degree under the laws of the State of Alabama. A duel is a single combat or fight engaged in by two persons with deadly weapons by agreement or by prearrangement. No particular form of words are necessary to constitute a challenge or agreement or by prearrangement to fight a duel. Whether or not a challenge, agreement or prearrangement to fight a single combat with deadly weapons was intended or whether it was a mere fusion of passion or folly or idle boast of a braggart not intended at the time to lead to any result or to be understood by the other party as a challenge to fight a duel are questions which you must decide before you would be justified in rendering a verdict of murder in the second degree under the duel statute." (Emphasis supplied) ¹

Some time after the jury had commenced deliberation, it returned for "definitions for the charges of homicide again," and the court repeated or substantially restated its oral charge on the subject, including that part of the oral charge quoted above. At the conclusion of the court's additional oral charge, the transcript shows the following as occurring before the jury again returned to the jury room:

"MR. ROBISON: Again, Your Honor, we would except to that portion of your charge to the statutory section on dueling, as earlier stated."

For whatever significance it may be, it is to be noted that in raising the point before the jury retired to commence its deliberation, the following occurred:

"MR. ROBISON: If the Court please, we would object to that portion of Your Honor's charge as it pertains to the statutory offense on dueling.

"THE COURT: So noted. I will allow you to state your grounds in just a moment."

After the jury commenced its deliberations, the following occurred out of the presence of the jury:

"THE COURT: Mr. Robison, if you want to state some grounds you can go ahead and do so now.

"MR. ROBISON: Would it be all right if I prepared those and submitted them to you?

"THE COURT: I have no problem with that.

"MR. POOLE: I have no objection."

We understand that there is no disagreement whatever between the parties on appeal as to the sufficiency or timeliness of defendant's objection or exception to the court's oral charge on the subject of dueling or a duel, but to bring to light any possible misunderstanding, we note that the record shows that on January 28, 1980, about five months after the trial, but about one month before the filing of the transcript of the proceedings, the following document was signed and filed by defendant's counsel with the Circuit Clerk:

"The defendant objects to that portion of the Court's charge pertaining to a duel between the Defendant and the deceased, Clyde Davis, a legal basis to convict the defendant of second degree murder. As grounds for said objection, the defendant says:

"That the offense defined in Title 13-1-71 of the 1975 Code of Alabama is not a lesser included offense covered by the indictment of murder returned against the defendant and on which indictment the defendant was tried.

"That the portion of the charge of the Court authorizing a conviction of second degree murder for killing by a fight in single combat, commonly called a duel, with deadly weapons, is improper under the indictment for murder brought against Defendant and on which he was tried.

"That the indictment charging the defendant with the killing of Clyde Davis unlawfully and with malice aforethought by shooting him with a pistol is insufficient to authorize the Court to charge the jury on the killing by a fight in single combat with deadly weapons, the offense defined in Title 13-1-71 of the 1975 Code of Alabama."

Appellee well argues, and supports his argument by citations to a number of authorities, that murder in the second degree is a lesser included offense in an indictment charging murder in the first degree. As to that well established principle there can be no doubt. The decisive question, however, is whether murder in the second degree as statutorily defined by Code of Alabama 1975, § 13-1-71, captioned "Killing in duel," is a lesser included offense of murder in the first degree. As to this, we are cited no authority by either party, and we believe it to be a case of first impression in Alabama.

There seems to be no disagreement as to the controlling principle, that to be a lesser included offense of one charged in an indictment, the lesser offense must be one that is necessarily included, in all of its essential elements, in the greater offense charged. Mayes v. State, Ala.Cr.App., 350 So.2d 339 (1977); Sharpe v. State, Ala.Cr.App., 340 So.2d 885 (1976); Powers v. State, 49 Ala.App. 690, 275 So.2d 369 (1973); Cochran v. State, 42 Ala.App. 144, 155 So.2d 530 (1963).

To determine whether the evil proscribed by the single short sentence contained in § 13-1-71 of the Code, "Killing by fight in single combat, commonly called a duel, with deadly weapons is murder in the second degree," requires comprehensive consideration of the word "duel" as thus employed. Of great significance is the fact that in looking to legal publications within the last several decades for material on the subject, we find, other than references to occurrences many decades before, a vacuum. We find no reported case in Alabama of a trial for killing another in a duel. The dearth of modern law on the subject is emphasized by the brevity of Corpus Juris Secundum (1941) in its five-page treatment of the subject (28 C.J.S. Dueling) and its one-case annotation in its 1979 Pocket Part. ² At 28 C.J.S. Dueling § 1a(1), we find:

"Dueling is the act of fighting with deadly weapons between two persons in pursuance of a previous agreement; and it is immaterial at what time prior to the encounter the agreement was made ... Dueling is distinguished from other offenses in that it has none of the elements of sudden heat and passion, and is usually carried out with some formality...."

We take it also that the following is correct:

"Duel. A duel is any combat with deadly weapons, fought between...