White v. State

• Decision Date: 28 April 1938
• Docket Number: 6 Div. 253.
• Citation: 236 Ala. 124,181 So. 109
• Parties: WHITE v. STATE.
• Court: Alabama Supreme Court

181 So. 109

236 Ala. 124

WHITE v. STATE.

6 Div. 253.

Supreme Court of Alabama

April 28, 1938

Rehearing Denied May 19, 1938.

Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler Judge.

Clint White was convicted of murder in the second degree, and he appeals.

Affirmed.

J. B Ivey and Horace C. Wilkinson, both of Birmingham, for appellant.

A. A Carmichael, Atty. Gen., for the State.

KNIGHT Justice.

The appellant was indicted by a grand jury of Jefferson county for the offense of murder in the first degree, and upon trial under said indictment was convicted of murder in the second degree, and his punishment fixed by the jury at imprisonment in the penitentiary for a period of ninety-nine years. He was sentenced accordingly.

The appellant is represented in this court by counsel who has filed here a lengthy brief in support of contentions, that the trial court committed many errors to the prejudice of the appellant, which should work a reversal of the cause.

Many pages of appellant's brief deal with alleged improper and prejudical remarks of the solicitor in his closing argument to the jury. If the record had disclosed that the remarks imputed to the solicitor had been, in fact, made by him in his argument to the jury, we might be inclined to hold that some transcended the bounds of legitimate argument, and were prejudicial. But the record does not support the argument or brief of counsel for the appellant in this respect. True, we find, but for the first and only time, a narration of these alleged prejudicial remarks in the motion filed by the defendant for a new trial. There is nothing in the bill of exceptions to support the grounds of the motion based on such remarks--nothing to show that the solicitor did in fact make such an argument to the jury--and no evidence was offered on the hearing to show that such remarks were made. The court on November 13, 1937, disposed of the motion in the following summary way: "Motion overruled and defendant excepts. Wheeler, J."

Hence we cannot predicate error on this action of the court, as respects this phase of the motion for a new trial. In all other respects the motion for new trial was without merit.

It is next insisted by appellant that the trial court committed reversible error in its oral charge, in "attempting to define deliberation and premeditation." The excepted to portion of the court's oral charge, in this respect, was: "but it may exist and may be entertained while the man slayer was grasping the knife with which the fatal stab was committed."

The above excerpt, though correct within itself, was not the entire definition given by the trial judge of "deliberation and premeditation." The court's full instruction to the jury on this phase of the law was "Now, premeditation and deliberation are synonymous terms; they come to mean one and the same thing. And premeditation and deliberation, as elements of murder in the first degree, mean simply that the defendant, before he committed the fatal act, intended that he would commit the act at the time that he did, and that death would be the result of such act. Premeditation may have been entertained for only an instant of time before the stabbing. It may exist for only a moment before. It does not mean,...