Weaver v. State

• Decision Date: 01 June 1911
• Citation: 55 So. 956,1 Ala.App. 48
• Parties: WEAVER v. STATE.
• Court: Alabama Court of Appeals

55 So. 956

1 Ala.App. 48

WEAVER v. STATE.

Court of Appeals of Alabama

June 1, 1911

Rehearing Denied June 30, 1911.

Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.

Griffin Weaver was convicted of murder in the second degree, and he appeals. Affirmed.

Allen & Bell, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

The defendant being charged with murder in the second degree, his objections to being put upon his trial were properly overruled by the court.

The record shows that the defendant was duly and properly arraigned, and no copy of the indictment, or list of jurors is required by the law to be served on him an entire day before the day set for his trial. There was no error committed by the court in overruling defendant's motion to quash the venire for the same reason.

The indictment upon which the defendant was tried charged murder in the second degree in the code form, and the jury returned the following verdict: "We, the jury, find the defendant guilty as charged in the indictment and set his sentence at 10 years." It is insisted here, and was properly raised in the court below, that the degree of homicide not being ascertained by the jury, it is not a sufficient finding upon which to sustain a judgment of conviction. The cases cited by the appellant to sustain this proposition, which hold that the degree of homicide must be specified to legalize the verdict and sustain a judgment of conviction, are based upon the imperative statute requiring such a specification, as between murder in the first and the second degree, when the defendant is indicted for murder. This statute, which has been in force since the Penal Code of 1841, is carried into the present Code (1907) as follows "7087. When the jury find the defendant guilty under an indictment for murder, they must ascertain, by their verdict whether it is murder in the first or second degree."

It will be seen from reading the statute that when the defendant is indicted for murder the jury is required by this statute, which was held to be peremptory, or mandatory, as far back as Cobia's Case, 16 Ala. 781, to ascertain by their verdict whether it is murder in the first or second degree. There is no statutory requirement in this state requiring the jury to find by their verdict whether the defendant is guilty of murder in the second degree or manslaughter, when he is under indictment for murder in the second degree. A careful investigation of all the authorities cited, together with many others, fails to disclose a case where this particular question has been presented.

The case of Storey v. State, 71 Ala. 329, cited as conclusive of his contention by the defendant, was one in which the indictment was for murder, and the court expressly puts its opinion on the ground of the mandatory requirement of the statute. "The Code requires that when the jury find the defendant guilty under an indictment for murder they must ascertain by their verdict whether it is murder in the first or second degree. Code 1876, § 4299." Storey's Case, supra. The cases cited and relied upon by defendant (Storey's Case, 71 Ala. 329; Robertson's Case, 42 Ala. 509; Watkins' Case, 133 Ala. 89, 32 So. 627; Johnson's Case, 17 Ala. 618; Levison's Case, 54 Ala. 520; Cobia's Case, 16 Ala. 781; Dover's Case, 75 Ala. 40; and Fuller's Case, 110 Ala. 655, 20 So. 1020) are all cases where the charge was murder and the statute applied, and, as said in Levison's Case, supra, "They (the decisions) are in conformity to the imperative terms of the statute, and no argument drawn from the objects it is supposed the statute was intended to accomplish can justify a departure from them."

Not so in the case at bar. Here there is no mandatory or other statute requiring the degree to be ascertained by the jury in rendering its verdict, and the question is whether the verdict, in the absence of such requirement, is sufficient to sustain the judgment of conviction. Such a verdict was held sufficient, where the crime is not divided into degrees, as far back as the Mose Case, reported in 35 Ala. 421. In that case the defendant, a slave, was indicted for murder, and the jury returned a general verdict of guilty, without finding the degree. Objections were interposed by defendant that the degree was not ascertained by the jury's verdict, and the Supreme Court held on appeal that this was unnecessary; that a general verdict was sufficient to sustain the judgment of conviction, as the statute requiring an ascertainment of the degree was not applicable; as the crime of murder, when committed by a slave, was not divided into degrees. "The verdict of guilty is not defective for its omission to specify the degree of the offense. The decisions in Johnson v. State, 17 Ala. 618, and Cobia v. State, 16 Ala. 781, are made in reference to murder committed by a white person. The crime of murder by a slave is not divided into degrees. Code, §§ 3312-3314. Consequently section 3082 of the Code, which requires that the jury, finding one guilty of murder, should specify whether the defendant is guilty of murder in the first or second degree, has no application to the indictment of a slave for murder." Mose v. State, supra.

It has been held that, even where a defendant was indicted for murder and convicted of manslaughter, it is not essential to a valid judgment that the jury should find by their verdict the degree, when the verdict shows by the punishment placed that the jury found the defendant guilty of manslaughter in the first degree. Watkins v. State, 133 Ala. 88, 32 So. 627.

The jury returned a general verdict of guilty, without specifying the degree, in the case of Wright v. State, 79 Ala. 262, the defendant being charged, in an indictment containing two counts, with forgery in the second degree, and it was sufficient, under the court's ruling, without specifying the degree.

A verdict finding the defendant guilty "on the second count only," when that count of the indictment charged forgery in the second degree, was held to be good and to justify a judgment without finding the degree. Scully v. State, 39 Ala. 240.

In Watkins v. State, 133 Ala. 88, 32 So. 627, the defendant was indicted for murder, and the jury returned a verdict of "guilty of manslaughter and fix the punishment at five years," and the court said the statute made no requirement to find the degree of manslaughter, and that the verdict was sufficient to show that the jury found the defendant guilty of manslaughter in the first degree, and to support such a judgment.

A general verdict of guilty on an indictment charging arson in the first degree, fixing imprisonment in the penitentiary, is held to be sufficient to authorize sentence for the offense, although the verdict does not express the degree, in Davis v. State, 52 Ala. 357.

In the absence of statutory exactions, the courts in many of the states have declared that a general verdict of guilty as charged in the indictment is equivalent to a finding of guilty of the highest degree of the offense charged in the indictment. Dean v. State, 43 Ga. 218; Welch v. State, 50 Ga. 128, 15 Am. Rep. 690; Estes v. State, 55 Ga. 131; Lyons v. People, 68 Ill. 271; Love v. People, 160 Ill. 501, 43 N.E. 710, 32 L. R. A. 139; State v. Elvins, 101 Mo. 243, 13 S.W. 937; Territory v. Romine, 2 N. M. 114; Territory v. Yarberry, 2 N. M. 391; Frolich v. State, 11 Ind. 213; Rose v. State, 82 Ind. 344; Manly v. State, 7 Md. 135; Bilansky v. State, 3 Minn. 427 (Gil. 313); Conkey v. People, 1 Abb. Dec. (N. Y.) 418; State v. Nelson, 14 Rich. (S. C.) 169, 94 Am. Dec. 130; Cook v. Territory, 3 Wyo. 110, 4 P. 887.

To recur to the decisions of our own state, the reasoning in the case of Anderson v. State, 65 Ala. 553, is persuasive of the sufficiency of the verdict in the case under consideration. That was a case in which the defendant was tried under an indictment charging forgery in the second degree, and the verdict was in the same language as the verdict in this case, and Stone, J., in rendering the opinion of the court, says: "Our statutes divide forgery into three degrees. The indictment in this case shows on its face that it does not charge forgery in the first degree; * * * it charges forgery in the second degree, and charges nothing else. The verdict of the jury finds the defendant 'guilty as charged in the indictment.' The indictment, as we have seen, charged him, in terms, with forgery in the second degree, and we cannot perceive how the finding could be more specific or definite. If the indictment, following a form or otherwise, be so framed as that it is alike applicable to different degrees of the offense charged, or, if the jury is charged with any duty in reference to the amount or character of the punishment to be inflicted, then a general finding would be insufficient, because the court would be left uninformed as to what judgment should be rendered. No doubt or uncertainty could exist in the present case; and hence a more specific finding was not necessary. Law is a science based on reason, and does not require the observance of useless ceremonies." Anderson's Case, supra.

The indictment charging murder in the second degree in this case does charge something else--i. e., the lesser crimes of manslaughter and assaults, which are comprehended in the charge made in the indictment for murder in the second degree; but the finding of the jury in this case is sufficient, as measured by the rule announced, for the punishment is fixed in the jury's finding, and the court is not left uninformed as to what judgment should be rendered, and "no doubt or uncertainty could exist in the present case; and hence a more specific finding was not...