Wade v. State

• Decision Date: 30 June 1921
• Docket Number: 6 Div. 858.
• Citation: 92 So. 97,18 Ala.App. 322
• Parties: WADE v. STATE.
• Court: Alabama Court of Appeals

92 So. 97

18 Ala.App. 322

WADE v. STATE.

6 Div. 858.

Court of Appeals of Alabama

June 30, 1921

Rehearing Denied Dec. 20, 1921.

Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.

Charley Wade was convicted of mayhem, and he appealed. Reversed and remanded, in accordance with the mandates of the Supreme Court, in 92 So. 101, 104.

Beddow & Oberdorfer, Roderick Beddow, and Ben F. Ray, all of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN, P.J.

This defendant was convicted of the crime of mayhem; he castrated a fellow man. He was sentenced to serve not less than 19 and not more than 20 years in the penitentiary. In addition to a plea of not guilty, he interposed a plea of not guilty by reason of insanity, claiming that his mental equilibrium had been disturbed by alleged illicit relations between his victim and defendant's wife.

It was obvious at the beginning of the trial that all these sordid matters would be aired throughout the trial. After the jury was selected, the general public were excluded from the courtroom. Relatives of the parties concerned, officers of the court, and attorneys were permitted to remain. The appellant made no complaint against such action on the part of the trial court at the time. He did not reserve an exception to such order, but for the first time he urges in this court that his constitutional right of a public trial was infringed.

Appellant contends that the maxim expressio unius est exclusio alterius should apply to section 169 of the Constitution of 1901; that it should be construed as prohibiting the exclusion of any part of the general public from any trial except in prosecutions for rape and assault with intent to ravish; that section 4019 of the Code of 1907 has no application to criminal cases, because it appears in the Civil Code, and that, if it is construed as applying to criminal cases, it is violative of the constitutional right of a public trial.

One purpose of a public trial, and one of the things our forefathers had in mind in guaranteeing a public trial, was to avoid "star chamber" proceedings that became notoriously infamous during the reign of certain English kings. In such cases the accused was rarely allowed counsel. No court reporter was present to record, under his official oath, every word uttered by the court, counsel, and witnesses. The lack of these and many other advantages that are now afforded one accused of crime probably accounts for the rigidity of construction this provision received by courts in the early days, as appear from some of the decisions cited in appellant's brief.

Under the common law as it was administered in ancient times in the courts of England, there was at times some real reason to fear the conviction of an innocent man. An accusation by the officers of the law was then almost tantamount to a conviction-a condition practically impossible to-day under our present state of enlightened public opinion. Our forefathers brought this idea of safeguard to the innocent across the water with them, and, in furtherance of that idea hedged the administration of the criminal law about with various restrictions, many of which have long since outlived their usefulness. Rules that were sound and very probably necessary in the age that gave them birth, but which are now obsolete, have been perpetuated by courts and seized upon by zealous advocates, intent upon bringing about the acquittal of a client in a hard case, until their purpose and mission have sometimes been lost sight of; finical reasoning has in some instances distorted great principles, until they are no longer looked upon by many as a shield to the innocent, but as a barrier to protect the guilty. As a result, society is being made the prey of a constantly increasing criminal element-constantly increasing because courts and lawyers are at times prone to live in an age several generations behind the times; to solve and adjudicate modern problems and cases looking through glasses that have become murky with the cobwebs of time. The question now seems to be not so much the protection of the innocent as it is the ability of the court to finally punish the guilty. If we ever reach the point where it will be cheaper to be criminal than otherwise, it will be because of the reluctance of courts and lawyers to abandon antiquated precedent, developed in an age and under conditions entirely different from the present, and their failure to cut loose from some rules that cannot affect the merits of a modern trial.

We do not intend to intimate by anything we have said that the court has any idea of striking down a constitutional right of a defendant in a criminal case, but we do mean to say that society as a whole has some rights, and that the rights of the defendant must be considered with due regard to the rights of the state. We must not concentrate so intently on the rights of the accused as to lose sight of the right of society to protect itself against its criminal element; the court must not be converted into an agency for the liberation of the guilty rather than an organization for the protection of the innocent. In every criminal case the state is entitled to a fair trial, a patient consideration of its case, and a square deal-just as much and to the same extent as the defendant in the case. Society has the right, and it is its duty, to protect itself against the filthy, sordid details of a trial involving infidelity on the part of a wife castration of her alleged paramour, and insanity on the part of the husband. The police power of the state is broad enough to sustain section 4019 of the Code, and the defendant's constitutional right of a public trial does not give him the right to pollute the mind of the entire community with the details of his real or imaginary grievances. In a trial of this character, where the accused his attorneys, his witnesses, officers of the court, and members of the bar are admitted, it is sufficiently public to satisfy the constitutional guaranty. The appellant's insistence that his constitutional right was infringed is without merit. Clemons v. State, 17 Ala. App. 533 86 So. 177; Ex parte Clemmons, 204 Ala. 697, 86 So. 926; 12 Cyc. 520.

The exceptions reserved to the ruling of the court upon the evidence are without merit. No error is shown in any of these rulings. A part of the answer of witness Propst tended to contradict the testimony of the defendant's wife. If the remainder of the answer was objectionable, it should have been separated from that which was admissible.

The motion to exclude was directed at the entire answer.

The alleged argument of the solicitor is not before us except as a ground in the motion for a new trial that was presented after judgment had been passed, sentence imposed, and an appeal to this court. The trial court had no jurisdiction to pass on such motion. Moreover it does not appear that any objection was made to such argument, and no appeal for corrective action was made to the trial court. Parties cannot speculate on the result of a case and complain of matters that might have been corrected during the progress of the trial.

The defendant requested several charges, most of them dealing with some phase of the law of insanity; some were given and some refused. The law on insanity in criminal cases was so thoroughly discussed in the memorable Parson's Case, 81 Ala. 577, 2 So. 854, that it has been deemed settled in this state ever since that case was decided. There is no necessity for attempting to add anything to that case, and any discussion of the subject must be in a way of restatement of the principles and rules there laid down for the guidance of trial courts. In this age when insanity seems to be a popular defense in a desperate case, it may not be out of place to reiterate some of the requirements of law in cases where that defense is interposed. While insanity is recognized as a complete defense to crime, the law requires that it should be real insanity, a mental disease, as distinguished from some emotion worked up for the particular occasion, or some passion that the party gives way to.

The defense of insanity in this case, to say the least of it, appears to be a crude quality of camouflage. The evidence in support of it is barely sufficient to authorize the submission of that question to the jury. Trial courts cannot be too careful in seeing to it that this humane defense permitted by law is not prostituted and used as a cloak to shield a criminal in distress. Juries should not be misled by references to irresistible impulses. They may well look with suspicion on nonexpert opinions given by close relatives and well-wishing friends that claim to have observed mental peculiarities for some period of time prior to the commission of the crime, but who have not taken any steps towards having the defendant detained or restored through the intervention of scientific treatment. A man sufficiently unbalanced to be excused from the penalty for crime is sufficiently unbalanced to be the object of solicitous care on the part of intimate friends and relatives as a general rule.

An irresistible impulse generated by wicked propensities will not excuse the violation of law. Depravity is not a disease. High temper, hot blood, and passion are not such mental ailments as will excuse the commission of crime. The so-called emotional insanity is not recognized as a defense in a criminal case.

When a defendant invokes the defense of insanity under the law of Alabama, the burden is placed on him by law to reasonably satisfy the jury from the evidence, first of all, that, at the time the crime was committed, he was as a matter of fact...