Russell v. State

• Decision Date: 17 December 1935
• Docket Number: 4 Div. 154
• Citation: 165 So. 256,27 Ala.App. 10
• Parties: RUSSELL v. STATE.
• Court: Alabama Court of Appeals

165 So. 256

27 Ala.App. 10

RUSSELL v. STATE.

4 Div. 154

Court of Appeals of Alabama

December 17, 1935

Rehearing Denied Jan. 14, 1936

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Effie Russell was convicted of assault and battery, and she appeals.

Affirmed.

Conforming to answers to certified questions (Ala.Sup.) 165 So. 255.

Chauncey Sparks, of Eufaula, for appellant.

A.A Carmichael, Atty. Gen., and Jas. L. Screws and Wm. H. Loeb Asst. Attys. Gen., for the State.

BRICKEN Presiding Judge.

Upon an indictment which charged this appellant with the offense of assault with intent to murder Mary Lanson, she was tried and found guilty of an assault and battery. The jury assessed a fine of $350. Judgment of conviction was accordingly pronounced and entered by the court, from which this appeal was taken.

It is conceded that the evidence in this case tended to show:

For the state: One Monday morning, in February, 1934, the defendant was passing the home of the alleged assaulted person, Mary Lanson, when she heard a conversation between Mary and another woman by the name of Dovie Malone. The defendant then addressed the woman, Mary Lanson, as follows: "Tell that durn lie like you told it yesterday." The defendant then went into Mary Lanson's yard almost to the steps, and some of the witnesses testified that she had a half brick in both hands, as she continued to repeat the request above quoted. Some of the state's witnesses testified that the assaulted person, Mary Lanson, then dodged or hid behind the woman, Dovie Malone; and that the defendant spoke to Dovie as follows: "Dovie, if you don't move, I'll hit you in the face." After that, Dovie left and the woman, Mary Lanson, started up the steps and the defendant grabbed her and pulled her back, and as she fell back, the defendant jumped on her and proceeded to beat her with some kind of alleged blunt instrument.

For the defense: The defendant denied the version of the difficulty as testified to by the state's witnesses, and testified that the woman, Mary Lanson, made the first attempt to assault the defendant. The witnesses for the defendant who saw the difficulty tell a different story from that of the state's witnesses, which tends to show that the testimony of the defendant, that the woman, Mary Lanson, fell and the defendant was picking her up when she assaulted the defendant, is true.

There was a verdict of guilty of the offense of assault and battery by the jury in the following language: "We, the jury find the defendant guilty of assault and battery and fix fine at $350.00."

The indictment in this case, as will be noted, charged a felony, but by operation of law it charged also every lesser offense included in the one charged. Hence, it charged the defendant with assault and battery, and with a simple assault; in neither of which is malice aforethought an essential ingredient. The verdict of the jury finding the defendant guilty of an assault and battery operated as an acquittal of the greater offense of assault with intent to murder. Therefore, in the consideration of this appeal, all questions and points of decision relating solely to the felony charged need not and will not be considered, such questions being now abstract and of no import in this case.

One of the principal insistences of appellant is to the effect that the verdict of the jury in this case is void, and is therefore insufficient to support the judgment of conviction and the sentence. It is contended by able counsel for appellant under his proposition 3, as follows:

"3. The verdict in this case is special and is not sufficient, under the authorities cited in brief. The jury says: 'We, the jury, find the defendant guilty of assault and battery and fix fine at $350.00.'

"Apart from the validity vel non of the assessment of a fine, the verdict was not responsive to the indictment. In the case of Clay v. State, 43 Ala. 350, the Court says:

" 'The verdict, in this case, is a special, and not a general verdict, that the defendant is guilty in manner and form as charged in the indictment.

" 'As a special verdict, it is wholly insufficient to authorize any judgment to be rendered on it.

" 'Among the many defects of this verdict, the following may be named: 1. It does not find what the pretense was; 2. It does not state to whom it was made; 3. It does not state from whom the money was obtained; 4. It does not state to whom the money belonged, nor does it find in what county the offense was committed.

" 'The verdict being a special one, it can not be helped by intendment, or by reference to extrinsic facts which may appear upon the record.'

"The indictment charges that the defendant 'unlawfully, and with malice aforethought, did assault Mary Lanson with the intent to murder her.' It is true the lesser offenses of assault and battery and assault are involved in this accusation. However, the verdict for a lesser offense should be just as complete as a verdict for the larger offense involved. In the Huguley Case, 158 So. 903, 904,

supra, the Court of Appeals has condemned a verdict under an indictment for assault with intent to murder, which simply says: 'We the jury find the defendant guilty of assault with intent to murder.' By the same logical reasoning, the verdict for a lesser offense, which fails to follow the allegations of the indictment, would, in like manner, be void.

"The verdict in this case simply says that the jury finds the defendant guilty of assault and battery, and makes no mention of the person upon whom the assault and battery was committed. Under the ruling of the authorities, supra, it is necessary for the verdict to show the person assaulted with intent to murder. It is just as logical that the verdict for a lesser offense should, in like manner, show the person who was assaulted and beaten.

" 'It is different when the verdict is imperfect in substance, and does not respond affirmatively, or by necessary implication, to the issues as formed. Such verdict is imperfect, not in form, but in substance. The presiding judge should not receive an imperfect verdict, but should remand the jury for further deliberation, under appropriate...