Warren v. State

• Decision Date: 30 June 1916
• Docket Number: 8 Div. 889
• Citation: 72 So. 624,197 Ala. 313
• Parties: WARREN v. STATE.
• Court: Alabama Supreme Court

72 So. 624

197 Ala. 313

WARREN v. STATE.

8 Div. 889

Supreme Court of Alabama

June 30, 1916

Appeal from Circuit Court, Lawrence County; R.C. Brickell, Judge.

John Warren was convicted of murder, and appeals. Affirmed.

Mayfield J., dissenting.

Callahan & Harris, of Decatur, for appellant.

W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.

MAYFIELD J.

Appellant was indicted and convicted of murder in the first degree, and sentenced to life imprisonment in the penitentiary.

The trial court instructed the jury in part as follows:

"This defendant is indicted for murder in the first degree. The indictment also charges murder in the second degree. The state has requested me, in writing, to charge you that if you believe the evidence beyond a reasonable doubt you must find the defendant guilty of murder. I am going to give you that charge. So, then, gentlemen, it is only necessary for me to charge you, then, upon murder in the first and second degree."

The first and grave question involved is, Can a trial court ever give such a charge as to any degree of homicide which involves malice or malice aforethought? If the above question be answered in the affirmative, then was it proper to give the instruction in this case? The first question is one purely of law; the second, a mixed question of law and fact. Mr. Thompson, in his work on Trials, answers the first question as follows:

"In criminal cases the judge has no power to direct a verdict of guilty, no matter how clear, unimpeached, and free from suspicion the evidence for the prosecution may be. Under constitutional provisions existing, it is assumed, in all the states, which guarantee to persons accused of crime the right of trial by jury, an accused person has, in every case where he had pleaded not guilty, the absolute right to have the question of guilty or not guilty submitted to the jury, no matter what the state of the evidence may be. Such is the nature of the right thus granted that it has been frequently held that it cannot be waived by the prisoner, and that the trial of a criminal case before the court without a jury is erroneous, even where it takes place with the prisoner's consent. So far as the writer is aware, the only respectable American authority in favor of the proposition that the judge can direct a verdict of guilty in a criminal case is the ruling of Mr. Justice Hunt, in the Circuit Court of the United States, on the trial of an indictment against Susan B. Anthony for illegally voting at a federal election." Volume 2, p. 1530, § 2149.

This ruling was set aside on appeal, and the action of the judge making it was severely criticized.

Judge Cooley, in his inestimable work on Constitutional Limitations, after discussing the province of courts and of juries in the trial of criminal cases, and the much-vexed question whether or not in such trials the jury are the judges of the law as well as of the facts, adds a note to the text, and cites thereto many well-considered cases to support the note. This note and the authorities cited are as follows:

"The province of the jury is sometimes invaded by instructions requiring them to adopt, as absolute conclusions of law, those deductions which they are at liberty to draw from a particular state of facts, if they regard them as reasonable; such as, that a homicide must be presumed malicious, unless the defendant proves the contrary, which is a rule contradictory of the results of common observation, or that evidence of a previous good character in the defendant ought to be disregarded, unless the other proof presents a doubtful case, which would deprive an accused party of his chief protection in many cases of false accusations and conspiracies. See People v. Garbutt, 17 Mich. 9 ; People v. Lamb, *41 N.Y. 360; State v. Henry, 50 N.C. 66; Harrington v. State, 19 Ohio St. 269; Silvus v. State, 22 Ohio St. 90; State v. Patterson, 45 Vt. 308 ; Remsen v. People, 43 N.Y. 6; Kistler v. State, 54 Ind. 400." Seventh Ed., p. 466, note.

This accurate and famous author and judge says, in the text ( Id. pp. 462-464):

"In one class of cases, that is to say, in criminal prosecutions for libels, it is now very generally provided by the state Constitutions, or by statute, that the jury shall determine the law and the facts. How great a change is made in the common law by these provisions it is difficult to say, because the rule of the common law was not very clear upon the authorities; but for that very reason, and because the law of libel was sometimes administered with great harshness, it was certainly proper and highly desirable that a definite and liberal rule should be thus established. In all other cases the jury have the clear legal right to return a simple verdict of guilty or not guilty, and in so doing they necessarily decide such questions of law as well as of fact as are involved in the general questions of guilt. If their view conduce to an acquittal, their verdict to that effect can neither be reviewed nor set aside. In such a case, therefore, it appears that they pass upon the law as well as the facts, and that their finding is conclusive. If, on the other hand, their view leads to a verdict of guilty, and it is the opinion of the court that such verdict is against the law, the verdict will be set aside and a new trial granted. In such a case, although they have judged of the law, the court sets aside their conclusion as improper and unwarranted. But it is clear that the jury are no more the judges of the law when they acquit than when they condemn, and the different result in the two cases comes from the merciful maxim of the common law, which will not suffer an accused party to be twice put in jeopardy for the same cause, however erroneous may have been the first acquittal. In theory, therefore, the rule of law would seem to be that it is the duty of the jury to receive and follow the law as delivered to them by the court; and such is the clear weight of authority."

He cites decisions of this court as supporting his conclusions, and they clearly support the text. The first utterance of this court on the subject is in the case of State v. Jones, 5 Ala. 672, where it is said:

"The power of the jury to judge both of law and fact results necessarily from the very constitution of that body, and from their right to find a general verdict for the prisoner, which the court cannot disturb. This right is explicitly admitted by Littleton & Coke, and other ancient writers upon the common law. [Coke Litt. 228a.] So in 4 Black.Com. 361, it is laid down that if the jury doubt the matter of law, they may chose to find a special verdict; but have an unquestionable right to find a general verdict, and determine the law as well as the fact. At the same time it cannot be doubted that these sages of the law considered it the duty of the jury to receive the law from the court, and that it was at the 'hazard of a breach of their oaths, when they undertook the decision of questions of law.' [See, also, People v. Croswell, 3 Johns.Cas. (N.Y.) 337.]

The decision in this case has been several times followed without qualification, but has been elaborated. See Pierson v. State, 12 Ala. 149; Batre's Case, 18 Ala. 119; Washington v. State, 63 Ala. 135, 35 Am.Rep. 8. In this last-cited case the opinion quotes approvingly from the opinion in Batre's Case, delivered by Dargan, C.J., the following:

"It has been said by courts of respectable authority that the jurors in a criminal case are the judges of the law as well as the facts, but we think this opinion arises from not distinguishing between the powers that a jury may assume to exercise and the duties confided to them by law. The law does not constitute them the judges, yet they may assume the responsibility of rendering a verdict contrary to the law, as given to them in charge by the court; and if they do so in a criminal case, and acquit the prisoner, their verdict is conclusive, for it is not under the control of the court."

In the last-cited case it was decided that in cases which involve intent, or a state of mind, as murder or assault with intent to murder, it is for the jury, and not the judge, to determine the "quo animo." In that case there was no conflict in the evidence, yet the court held that the state of the defendant's mind at the time of the alleged offense was for the jury and not the court.

It is quite true that the affirmative charge has been given in some misdemeanor cases which involved no intent or quo animo, and which were mere statutory offenses, and were offenses or crimes merely because the statute made them such. But the propriety of giving the affirmative charge in such cases has always been doubted.

In the case of Weil v. State, 52 Ala. 22, the defendant was on trial for a misdemeanor--merely violating the revenue law by carrying on a business without paying the license tax--and the trial court gave the affirmative charge against the defendant. The court, per Brickell, C.J., said of this charge:

"A charge of this kind should be but seldom, if ever, given in any criminal case. It is an invasion of the province of the jury in any case, civil or criminal, unless the evidence is clear, positive, and undisputed. If the evidence is circumstantial, or any material fact is to be drawn as an inference, and is not a legal presumption from it, such a charge is erroneous. In this case, the true inquiry is, What was the intent of the appellants in the acts supposed to be evidence of their being engaged in, and carrying on, the business of wholesale dealers in spirituous liquors? That intent, it was the province of the jury to deduce from the evidence. However irresistible the inference may have seemed to the court from the evidence,

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