Roberson v. State
| Decision Date | 12 June 1913 |
| Citation | 183 Ala. 43,62 So. 837 |
| Parties | ROBERSON v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied June 30, 1913
Appeal from Circuit Court, Marion County; C.P. Almon, Judge.
Bart Roberson was convicted of homicide, and he appeals. Affirmed.
See also, 57 So. 829; 59 So. 321.
E.B. & K.V. Fite, of Hamilton, and A.H. Carmichael, of Tuscumbia for appellant.
R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.
The defendant was indicted for murder in the first degree. He was convicted on a former trial of murder in the second degree only, and that judgment was reversed by this court on former appeal to this court.
Conviction of a lesser degree of crime than that charged in the indictment, under our law, is an acquittal of the charge of the higher degree of the same offense, though the judgment of conviction of the lesser offense be reversed on appeal.
However for the defense to be availing on another trial, the defendant must specially plead it; and, unless he does plead it, he is held to have waived his right thereto. The record in this case affirmatively shows that the defendant did plainly plead former acquittal as to murder in the first degree, that his plea was sustained, and that he was put on trial for murder in the second degree only.
It is insisted that the judgment in this case should be reversed because that the record fails to show that the case was specially set for trial, and a special venire ordered, as is required for the trial of capital cases, and because it fails to show a waiver thereof as is authorized by statute in certain cases. Code, § 7264. We cannot agree with counsel in this contention. The record does affirmatively show that the defendant was put upon trial by the jury which the law, constitutional and statutory, had provided for the trial of this case, and that if he had been put upon trial by a special or different jury, it would not have been the one provided by law. This being true, the judgment ought not to be reversed, and will not be reversed, for the failure to make a different order. A different order, if made, would have been improper.
The judgment entry is in part as follows: "Comes E.B. Almon, solicitor pro tem., who prosecutes for the state, comes the defendant in open court in his own proper person and by attorney, and the defendant, being arraigned by having the indictment read to him for answer thereto, pleads former acquittal to murder in the first degree, and his said plea of former acquittal is sustained by the court, and the defendant is put on trial for murder in the second degree, and he pleads not guilty."
Rule 30 of the circuit and inferior courts provides as follows: Code 1907, vol. 2, p. 1525. This was a substantial compliance with this rule, and hence no special venire was required, or was even proper, after this special plea was sustained. This rule, of course, was not intended to deprive, and could not and does not deprive, the accused of his constitutional and statutory rights; it rather tends to secure and enforce them.
There was no error in that part of the court's oral charge to the jury to the effect that mercy and sentiment did not rest with them. It could have been omitted, but we cannot say that it was either improper or erroneous.
It was perfectly proper for the state to prove by the witness Dixie Vickery that defendant had encouraged witness to kill the deceased, who was the father of the witness. The question was leading, but allowing it to be so was not reversible error. This evidence offered was the best obtainable to prove the fact that the defendant had encouraged the son of the deceased to kill his father. Its credibility was for the jury, and the court could not exclude it because unnatural or unreasonable.
It was proper for the court to allow Dr. Johnston to testify by giving his opinion as to whether or not the inner lining of the skull could be fractured without fracturing the outer lining thereof. This was a subject for expert testimony, and the physician's opinion was not irrelevant. The witness was shown to have been a practicing physician for 24 years, and to be otherwise qualified to testify. The credibility of such testimony was of course for the jury, and there was no attempt on the part of the court to take that question from them.
It was competent and relevant evidence, on the trial, to show that deceased was a witness against defendant, that the case was still pending, and that defendant knew these facts, at the time he killed deceased.
It was likewise competent for the state to prove such facts by the defendant; he having voluntarily testified in the case as a witness. Certainly defendant's knowledge of the facts could not be better proven than by his own testimony.
Nor was it error for the court to state to the jury, while instructing them as to the law of the case, that the defendant had testified as to these facts.
A number of exceptions were reserved to separate parts of the oral charge of the court. Some of the challenged portions, standing alone, are incomplete, and, abstractly considered, would be erroneous; some of them misplace the burden of proof as to certain elements of self-defense, and some exact too high a degree of proof.
There has been great contrariety of opinion among English and American courts and judges as to the burden and the sufficiency of proof, in criminal trials, on the questions of alibi, insanity, and self-defense, and this court has shared in the contrariety; but these questions have at last been set at rest in this state, by a statute on the subject of insanity, and by decisions of this court on the subjects of alibi and self-defense.
In criminal trials, including those involving homicide, it is now settled in this state that the prosecution is required to prove beyond a reasonable doubt the offense charged, and that if the proof fails to establish any of the essential elements necessary to constitute the crime for which the accused is on trial, he is entitled to an acquittal. This is said to result from the fact that the presumption of innocence, in favor of the defendant, stands until it is overcome by proof of guilt, and from the nature and form of the issue in criminal trials. As to the trial on the merits, it is usually a general denial of the crime charged, and this imposes on the prosecution the burden of proving affirmatively the existence of every material fact or ingredient which the law requires in order to constitute the offense. If the act charged in the indictment is one which is justifiable or excusable, a criminal act has not been committed if the facts show justification or excuse; and the jury may acquit if they entertain a reasonable doubt as to whether the act shown constituted a crime. In civil cases justification or excuse, as a rule, must be specially pleaded, but in criminal cases the rule is the other way (except as to insanity and, maybe, some other phases); and such matters are open under the general issue, and the affirmative proof of the crime, in such cases, when not specially pleaded, remains in all stages upon the prosecution, and if upon the whole evidence the jury entertain a reasonable doubt as to the guilt of the accused, he is entitled to an acquittal.
For example: In order for a homicide to be murder, it must have been committed with malice aforethought. Malice is therefore just as essential an ingredient of the offense of murder as the act which causes the death; without its concurrence there is no murder, whatever other offense it may be, and as every man is presumed to be innocent until his guilt is proven, this presumption includes freedom from malice, as well as innocence of the act causing the death, and the burden of overcoming each element of the presumption rests upon the prosecution. Of course there are certain kinds and modes of homicide from which, when proven, the law presumes malice. Proof of a homicide alone does not necessarily establish that he who causes the death is guilty of murder. The killing may be either murder, manslaughter, or excusable or justifiable homicide; and if the last, the slayer would be entirely innocent.
The following will show the two views entertained by the judges on this question, and how and when this court settled our doctrine:
Sir Michael Foster, an eminent judge of the highest English court of criminal jurisdiction, and a very exact writer, whose work has been a standard authority for a century and a half, of whom Sir William Blackstone said, "He is a very great master of the common law," and of whom Lord Chief Justice De Grey said, "He may be truly called the Magna Charta of Liberty of persons as well as fortunes" (3 Wills, 203), states the rule thus in his Crown Law, 255 ...
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