Smith v. State
| Decision Date | 24 February 1959 |
| Docket Number | 1 Div. 777 |
| Citation | 40 Ala.App. 158,109 So.2d 853 |
| Court | Alabama Court of Appeals |
| Parties | William Luke SMITH v. STATE. |
Stanford Young, Waynesboro, Miss., and Harry Seale, Mobile, for appellant.
John Patterson, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
Under an indictment charging murder in the first degree this appellant was, by the jury, found guilty of manslaughter in the first degree. Judgment was entered accordingly, punishment being fixed at imprisonment in the penitentiary for a term of five years.
Since this judgment must be reversed because of error in the court's oral instructions to the jury, to which exceptions were duly reserved, we will set out only a thumb nail sketch of the tendencies of the evidence offered below.
The evidence is undisputed that preceding the killing the appellant and deceased had engaged in playing shuffle board in the Sunset Inn in Mobile County. They had wagered on each game, and a heated argument arose between them in the course of the final game. Threats were made, but by which participant is somewhat in dispute.
At any rate, the appellant went to his truck parked on the outside, and, according to appellant, decided to return to the tavern for another beer. However, he conveniently obtained a pistol from his truck before his return.
It should also be noted that the deceased armed himself with a beer bottle, and stationed himself just inside of, and to the left of the doorway, the door swinging to the left upon being opened.
Taking the evidence in its most favorable light to the appellant, for the purposes of this review, the deceased struck the appellant a rather severe blow on the mouth with the beer bottle just as he reentered the tavern.
The two then clenched, and fell to the floor.
According to the State's evidence the appellant pulled his pistol and shot the deceased. According to the appellant, as he and deceased struggled his pistol fell out of his pocket onto the floor. A Mr. Dickinson, a patron at the bar, grabbed the pistol, and appellant also grabbed it, catching it by the barrel. Both sought possession of the pistol, and in the struggle the gun fired two or three times.
In his oral instructions to the jury the court defined manslaughter in the first degree as follows:
The record shows that about an hour and a half after it had retired, the jury returned to the court requesting further instructions as to possible verdicts.
One juror stated:
In reply to this inquiry the court repeated its definition above set out, and in response to a further question by a juror, in which the juror stated: 'There is a difference in the definitions,' the court again twice repeated the definition of manslaughter in the first degree as he had first stated it.
Counsel for appellant then reserved an exception to this portion of the court's instruction, stating:
The court met this exception by again repeating the definition of manslaughter in the first degree as first stated above.
The court's definition that 'manslaughter in the first degree is the voluntary taking of human life and provides that the killing or means whereby death was brought about must be intentionally done or made but not with intention to kill,' is an anomaly, and completely self contradictory.
'Voluntary' means done by design, or intention; intentional; purposed, or intended. See Webster's Int. Dic., 2nd Ed.
One cannot voluntarily take a human life, or kill intentionally, 'but not with intention to kill.'
In order to constitute manslaughter in the first degree, there must be either a positive intent to kill, or an act of violence from which, ordinarily, in the usual course of events, death or great bodily harm may be a consequence.
The last above definition of manslaughter in the first degree has been set forth in decisions of our ...
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Anderson v. State
...and have noted discussions of them in decisions as late as Nixon v. State, 268 Ala. 101, 105 So.2d 349 (a murder case), and Smith v. State, Ala.App., 109 So.2d 853. We have concluded that the Rainey case, supra, is still the law and represents a reexamination and a refinement in the law of ......
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White v. State
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Baldwin v. State, 3 Div. 810
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