Sellers v. State
| Decision Date | 06 February 1913 |
| Citation | 61 So. 485,7 Ala.App. 78 |
| Parties | SELLERS v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Law Court, Pike County; T.L. Borum, Judge.
George Sellers was convicted of crime, and he appeals. Reversed and remanded.
E.R. Brannen, of Troy, for appellant.
R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.
Section 6897 thus provides: "Any person who shoots a pistol or other firearm *** at, into, in, through, or against a dwelling house, etc., shall be guilty of a misdemeanor, and on conviction fined not more than one thousand dollars," etc.
The defendant was arrested and tried in the law court of Pike county on affidavit and warrant charging (omitting other averments immaterial to the consideration here) that defendant "shot a pistol or other firearm at, into, in through, or against a dwelling house the property of affiant." The defendant interposed a demurrer thereto on the ground, first, that it charged no offense, and, second that it failed to allege that the shooting was unlawfully done.
The general rule is that when a statute creates a new offense unknown to the common law, and describes its constituents, the offense may be charged in the language of the statute. Lodano v. State, 25 Ala. 64; Smith v. State, 22 Ala. 54; and authorities cited in 1 May. Dig. p. 823.
But every rule has its exceptions. It will be observed that the affidavit or information in this case follows literally the language of the statute; yet we are of opinion that it is not sufficient to charge the offense condemned by the statute, for the reason that, in order to uphold the statute, we are constrained to construe it as intended to prohibit the willful or intentional shooting at, into, in, through, or against the dwelling of another, and when not acting in self-defense. We are not of opinion that the statute was designed to make it an offense to accidentally shoot into another's dwelling, in the absence of criminal negligence causing the accident; nor do we think it was intended to render criminal the shooting into such dwelling, when the person doing the shooting was at the time in the act of defending himself against the felonious attack of another under such circumstances that he would be justified under the general law of self-defense. Davenport v. State, 112 Ala. 50, 20 So. 971. Hence, under our construction of the statute, it is not every shooting into another's dwelling that will constitute an offense under it; and therefore an information or indictment that merely charges that a named person "shot a pistol or other firearm at, into, in, through, or against the dwelling house" of another designated person charges no offense, since included in the charge are acts which are innocent, such as a shooting done accidentally or one done in the lawful exercise of the right of self-defense. It would have been no answer or defense to the charge, as here preferred, if the defendant, under the plea of not guilty, had shown that the shooting was entirely accidental or in self-defense, for it would still be a shooting into the house of another, which is all that is charged. The information or indictment, in order to be sufficient in charging the offense condemned by the statute, should charge that the person "unlawfully" or "contrary to law" "shot a pistol or other firearm at, into, in, through, or against" such dwelling house, thereby excluding the idea that it was done acidentally or in self-defense.
Section 6893 makes it an offense to present a pistol or other firearm at another. It has been construed by our Supreme Court as not intending to render criminal the presenting of a pistol or other firearm at another when, under the circumstances, the act was justified by the general law of self-defense. Davenport v. State, 112 Ala. 50, 20 So. 971, supra. And the form prescribed by the Code for an indictment under that section reads:
"A.B. did unlawfully present a firearm at C.D." Code, § 7161, form 60; Elmore v. State, 140 Ala. 184, 37 So. 156. The word "unlawfully" here employed in the indictment is not found in the statute itself creating the offense; yet the Legislature deemed its use essential in charging the offense intended to be condemned by the statute, which supports the conclusion we here reach that it or its equivalent is necessary in charging an offense under the statute we are considering.
While the evidence here shows conclusively that the person, whoever it was, that shot into the dwelling house of the prosecutor did so neither accidentally nor in self-defense, yet this cannot, of course, alter the necessity for enforcing the essential rules of pleading requiring that the information itself charge an offense.
The evidence for the defendant tended to show that while he and his companion, when en route home from Linwood on the night of the shooting and near the time thereof, did pass along the public road by prosecutor's house, where the shooting was done, yet neither of them did it, nor had anything to do with it, nor knew who did; but that they heard the shooting some time after they passed prosecutor's house, having met before they heard it and shortly after they passed prosecutor's house, two unknown persons in the public road going in the direction of prosecutor's house, whom they were...
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... ... indicate why we are of the opinion that the first count of ... the indictment was defective and the prejudicial and ... reversible error was committed in overruling the ... appellant's demurrer pointing out these and other ... defects. Sellers v. State, 7 Ala. App. 78, 61 So ... 485; Abercrombie v. State, 8 Ala. App. 326, 62 So ... In the ... state's brief, it is said: "It must be borne in mind ... by this court that the words 'contrary to law' used ... in count 1 of the indictment were used to charge that the ... ...
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...Fields v. State, 382 So.2d 598, Ala. (1980), relying on White v. State, 48 Ala.App. 111, 262 So.2d 313 (1972), and Sellers v. State, 7 Ala.App. 78, 61 So. 485 (1919). IV In granting the defendant's motion for a change of venue and moving the trial from Morgan County to Cullman County, the C......
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