Whittle v. State

• Decision Date: 14 May 1925
• Docket Number: 4 Div. 190
• Citation: 213 Ala. 301,104 So. 668
• Parties: WHITTLE v. STATE.
• Court: Alabama Supreme Court

104 So. 668

213 Ala. 301

WHITTLE v. STATE.

4 Div. 190

Supreme Court of Alabama

May 14, 1925

Motion to Set Aside Submission Denied June 11, 1925

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Noah Whittle was convicted of murder in the first degree, and he appeals. Affirmed.

Albert Carmichael and C.D. Carmichael, both of Geneva, and Espy &amp Hill, of Dothan, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

GARDNER J.

Appellant was convicted of murder in the first degree, and his punishment fixed at life imprisonment.

The defendant was arraigned and tried at the July term, 1924, of the court, at which time the final judgment entry recites that "the defendant, *** being in open court, and being arraigned to the indictment as read to him, pleads not guilty." This judgment entry then proceeds to fix the number of jurors to constitute the trial which was set for July 10, 1924, and required service of a copy of the indictment and venire as provided by law. Under date of July 10, 1924, the judgment entry then shows that issue was joined by the state "on the defendant's plea of not guilty and a trial was entered upon." The judgment entry on the trial of this cause before the jury discloses, therefore, the defendant entered only the plea of not guilty, and issue joined thereon by the state.

In Baker v. State, 209 Ala. 142, 95 So. 467, it was held such final judgment entry is conclusive, and a special plea of not guilty by reason of insanity elsewhere appearing in the record will be presumed to have been abandoned. Under the above-cited authority, therefore, the conclusion would be that the question of defendant's sanity, vel non, was not an issue in the case, and the charges refused to defendant and rulings on evidence touching this issue might well be pretermitted.

It is apparent, however, from other portions of this record that in fact the plea of not guilty by reason of insanity was interposed, and that defendant's sanity, vel non, formed an issue in the cause, which was submitted to the jury. In view of this situation, therefore, and the importance thereof to this defendant, we have thought it proper to consider the questions arising from this plea. There were charges refused to defendant numbered 23, 26, 27, 30, 31, 32, and 34 directed to this issue. Charge 23 is argumentative, and is also objectionable, in that it fails to rest the unsoundness of mind as a result of a diseased brain, and this latter criticism is also applicable to refused charge 27. Parson's Case, 81 Ala. 577, 2 So. 854, 60 Am.Rep. 193. But we find no occasion to here treat the remaining refused charges separately. We have examined the oral charge of the court with care, and by way of comparison with the refused charges and in connection with charges 28, 29, and 35, given upon this issue for defendant, and the conclusion has been reached that the substance of each of the refused charges was embraced in the oral charge or those given for defendant. In no event, therefore, could prejudicial error have intervened in the refusal of any of these charges.

While the state's objection to the statement of the witness Mamie Hendricks that defendant was "afflicted with some kind of spells. I reckon you call it kind of crazy," was sustained, yet it very clearly appears that immediately thereafter the witness testified in detail as to the facts tending to show an abnormal condition of the defendant, and, whether the ruling was erroneous or not (a question we do not decide), defendant suffered no prejudice thereby. This observation is likewise applicable to the ruling of the court in declining to permit defendant on his direct examination to state what deceased said to him about his (defendant's) daughter, as we find on page 85 of the record where defendant testified, without objection, to this matter on re-direct examination. These constitute the questions which counsel have considered of sufficient importance to merit discussion upon this issue, and we find in them no reversible error, nor in the other few remaining questions not herein discussed.

The evidence for the state tended to show that defendant lay in wait near a road, and without excuse or justification shot deceased [one Slocomb] as he rode by in a buggy; while, on the other hand, defendant insists that, although he shot and killed the deceased, he acted in self-defense.

Charges 1, 2, 6 and 7, refused to defendant, relate to the subject of self-defense, and are substantially covered by charges 1 and 2, given for defendant, as well, also, the oral charge of the court.

Refused charges 11 and 22 on the doctrine of self-defense omit the element of peril but were they free from defect their substance was fully embraced in the oral charge. Charge 23 1/2, refused to defendant, is substantially set forth in charges 2 and 16, given at his request. Aside from any other consideration, the word "is" in refused charge 25 renders the charge unintelligible, and justifies its refusal. South. Ind. Inst. v. Hellier, 142 Ala. 686, 39 So 163; 12 Michie Dig. 522. But, though considered as corrected, the charge was otherwise faulty in pretermitting a freedom from fault in...