Roberson v. State

• Decision Date: 08 February 1912
• Citation: 57 So. 829,175 Ala. 15
• Parties: ROBERSON v. STATE.
• Court: Alabama Supreme Court

57 So. 829

175 Ala. 15

ROBERSON v. STATE.

Supreme Court of Alabama

February 8, 1912

Appeal from Circuit Court, Marion County; C. P. Almon, Judge.

Bart Roberson was convicted of murder, and he appeals. Reversed and remanded.

The rulings as to evidence sufficiently appear from the opinion of the court.

The following charges were refused to the defendant: (C) "I charge you, gentlemen of the jury, that if there is one single fact proved to the satisfaction of the jury which is inconsistent with defendant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit." (7) "If the defendant was without fault in bringing on the difficulty, and was in imminent peril, or reasonably appeared to be, of loss of life, or of suffering great bodily harm, and if he could not retreat and avoid the combat in safety to himself, then he had the right to defend himself against an attack made on him by the deceased, even to the taking of his life, if it reasonably appeared to the defendant under all the circumstances to be necessary." (F) "The court charges the jury that if the defendant was without fault in bringing on the difficulty, and if at the time of the homicide there appeared, so apparently as to lead a reasonable man to the belief that it actually existed a present, impending, and imperious necessity in order to save his own life, or in order to save himself from fatal bodily harm, to kill the deceased, then he had a right to shoot the deceased, and the jury must acquit him, on the grounds of self-defense."

In his oral charge to the jury the court said: "The defendant was examined in his own behalf. You should weigh and pass on his evidence, as you do that of the other witnesses in the case; but in so doing you should take into consideration that he is the defendant, and interested in the result of the case; that if he is convicted he will suffer the punishment fixed by the jury, and if he is acquitted he goes free, and has no punishment to suffer."

E. B. &amp K. V. Fite and A. H. Carmichael, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

SAYRE J.

Appellant was indicted for murder in the first degree. The jury returned a verdict in the following form: "We, the jury find the defendant guilty as charged in the indictment, and fix his punishment at imprisonment in the state's penitentiary for life." For many years the law has required of this court in the consideration of criminal appeals that it "must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands." Code, § 6264. For many years, also, the statute of this state has required that, "when the jury find the defendant guilty under an indictment for murder, they must ascertain, by their verdict, whether it is murder in the first or second degree." Code, § 7087. And the further provision is that, "if the defendant on arraignment confesses his guilt, the court must proceed to determine the degree of the crime, by the verdict of a jury, upon an examination of the testimony, and pass sentence accordingly." Id. The reason for this is found in the fact that the statute, for the purpose of adjusting the punishment, makes murders at the common law of a certain class, murders in the first degree, and all others murders in the second degree, affixing different punishments to the different degrees. Watkins v. State, 133 Ala. 88, 32 So. 627. And this court, in the observance of these statutory requirements, has frequently and uniformly held that no judgment of conviction, under an indictment for murder, can be sustained, unless the verdict of the jury expressly finds the degree of the crime of which the defendant is convicted. Storey v. State, 71 Ala. 329, and cases there cited; Fuller v. State, 110 Ala. 655, 20 So. 1020. But where the conviction is of manslaughter the statute makes no such requirement. Watkins v. State, supra. The trial court clearly and correctly stated this law to the jury in its charge, but must have overlooked it when receiving the verdict. Under the statute and the decisions the judgment of conviction in this case is fatally defective and must be reversed.

It having become proper under the circumstances of the case to prove the character of the deceased for peace and quiet or for turbulence and violence, Kite Scott, a witness for the defendant, after he had testified that he had...