Tucker v. State, 5 Div. 701

• Court: Supreme Court of Alabama
• Writing for the Court: SAYRE, J.
• Citation: 202 Ala. 5,79 So. 303
• Docket Number: 5 Div. 701
• Decision Date: 09 May 1918
• Parties: TUCKER v. STATE.

79 So. 303

202 Ala. 5

TUCKER
v.
STATE.

5 Div. 701

Supreme Court of Alabama

May 9, 1918

Rehearing Denied June 20, 1918

Appeal from Circuit Court, Chambers County; S.L. Brewer, Judge.

Lon Tucker was convicted of murder in the first degree, and sentenced to the death penalty and he appeals. Affirmed. [79 So. 304]

Mathews & Mathews, of Bessemer, for appellant.

F. Loyd Tate, Atty. Gen., for the State.

SAYRE, J.

This court is unwilling to reverse the judgment in this case on the trial court's refusal of charges 17, 18, and 19, requested by the defendant. It is true these charges are taken from the opinion in King v. State, 90 Ala. 612, 8 So. 856, where it was held that they should have been given. With deference, we entertain the opinion that these charges are open to criticism for the reason that to instruct the jury that drunkenness or intoxication may sometimes operate to rebut the existence of malice, or that a man may in many instances be so drunk as to be incapable of entertaining a specific intent, or may render the accused incapable of forming or entertaining a certain necessary specific intent, is not to instruct the jury in that principle of law upon which courts and juries must proceed in dealing with crime as affected by the drunkenness of the criminal. These charges tended to mislead the jury to the conclusion (charge 17) that the drunkenness or intoxication shown in the particular case, though it was clearly open to the jury to draw widely different inferences as to its extent and effect upon the mental faculties of the accused, was sufficient to require--for to permit in such cases is to require--a finding that accused was incapable of forming or entertaining some undefined specific intent necessary to constitute the crime charged, or (charges 18 and 19) that they might so find for the reason that sometimes or in many cases such finding is proper. But it is not necessary to indulge this criticism of the charges, for the proposition of law which it is assumed defendant wished to get before the jury had full statement in charges 16 and 20 given by the court on his request. Not only so, but the same proposition was laid down by the court in its oral charge to the jury. The court did say that:

"Voluntary drunkenness is no excuse for any crime, *** and in this case it is not available as an excuse; *** it neither excuses the offense nor avoids the punishment which the law fixes when the character of the offense

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