Bachelor v. State

' ALABAMA REPORTS рlan rendering admis- de- commission homicide held purpose Ms of case. For the of sible. duly taken heard and cision aon motion consideration, act .within he witness, <&wkey;>452(2)Lay who law 5. Criminal — full term law. fixed inquired merely person had knew about died imply of But an order not does incompetent opinion suicide, give of contemplat- continuance, actually entered sanity. deceased’s keep motion alive until ed is law to nonexpert Knowledge that de- of witness days, heard, may, lapse grandmother of fendant’s not sufficient to had died of suicide give qualify opinion as him to entered order be stricken a different her mental condition. continued, showing not it was heard warrants the absence &wkey;>452(2)—Mere 6. Criminal law statement pro mandamus tunc. amendment nunc persons inquired about witness that he knew vacating not directed give is dеnied because qualify as to does him not prayer being order; improper sole the for the their mental condition. entry not of an order which Mere statement' of witness that knew persons ac- speak certain sufficient does not show the truth. intimacy quaintance to enable and continuous Mandamus denied. trustworthy give opinion as their him to mental condition. ANDERSON, J., . and SAYRE O. 12) &wkey;>730( GARDNER, JJ., remark 7. Criminal law concur. —Counsel’s cry baby, to be had claimed warrant mistrial not shed a tear held not to prosecution, withdrawn. in murder where 67) argument relative of counsel in Comment 976.) (5 Div. v. STATE. BACHELOR cry baby, testimony that defendant was 5,May Supreme watching during 1927. the whole of Alabama. “I trial and he Court have been though tear,” im- shed not Rehearing Re- 1927. Further Denied June evidence, proper of fact not in as statement hearing 11, 1927. Denied June directing of mistrial not warrant held prosеcution, court, on defend- where murder <&wkey;>528 ac- of- 1. Criminal law —Confession objection, such remark ant’s jury. excluded against complice defendant is inadmissible by defendant, voluntarily or affirmed unless presence re- <&wkey;72l(3) while he made defendant’s de- that had not 8. Criminal law —Comment mained silent. cry baby, fendant, claimed accomplice during comment as to shed held not To render confession tear n testify (Code 1923, de- on failure to admissible commission of crime fendant, appear was made confession prosecution murder, it must statement In presence re- that defendant in defendant’s de- that he watched counsel in argument voluntarily silent, that defendant cry baby, mained affirmed truth or of fendant, that de- claimed to be accomplice’s statement. objec- tear held fendant had shed of defendant tionable as comment avail behalf, failure &wkey;>528—Voluntary affirma- law 2. Criminal testify right in his own himself of accomplice’s of truth of tion under Code 5632. though subsequently admissible, confession 14) <&wkey;730( made. law 9. Criminal —Counsel’s prosecution marks in murder two Chi- of con- affirmation truth Defendant’s cago criminals though subsequently accomplice, caused death individual fession of insane, made, named and that If found mind where defendant’s admissible years hope or turned loose in three would be two fear. from influence was free cured corrective held instruction. i&wkey;5l9(l) “Voluntary con- Criminal law — argument Error in statement counsel made fession” without influence prosecution “two in murder criminals hardship depend- hope leniency or fear of city Chicago caused the death one ent confession. Frank,” guilty by “if defendant was found “Voluntary is that made when confession” sеnt to reason of he would be hope from influence of is free mind of accused asylum and turned loose two or insane encouragement menace or or fear excited that confessed. years,” held cured corrective instruc- 'three favorably with if he dealt would be objection. tion of court defendant’s (&wkey;726Permitting interpre- Criminal law — definitions, see Note.—For other Words [Ed. of statement defendant's tation Series, Phrases, First and Second Volun- right liberty forfeited that defendant had and was tary Confession.] asking jury as admis- not to kill him <&wkey;>528 insanity plea volun- —Defendant’s sion was not meritorious affirming tary truth accom- held plice’s admitting planning confession and closing argu- After defendant’s counsel homicide held admissible. right had forfeited his ment stated defendant to murder, voluntary prosecution ‍‌‌‌​‌​​‌​‌​​‌‌​‌‌​‌​‌‌‌​​​​​​‌‌​‌‌‌‌‌‌​​​‌​​‌‌‌​‍merely liberty asking state- not to and was affirming prosecuting attorney permitting him, ment truth accom- kill admitting plice’s interpret confession and there remark as admission that Key-Numbered Digests qjsjffor other oases see same KEY-NUMBER in all Indexes BACHELOR v. STATE (216 Ala.) insanity electrocution, plea ing, 1923, §,5296, in no merit not under Code defendant’s held 5309, 5310, under sections former sentence will be annulled and in for case remanded <&wkey;253(l) of de- 11. Homicide —Conviction accordance with new statute. degree for murder father-in- fendant first 3., dissenting Anderson, Gardner, evidence. by law held sustained J., part. in Evidence to sustain conviction first held degree father-in-law, Rehearing. murder On of defendant’s planned to which able tate. claimed defendant state en- <§=283(2) regular 18. Statutes act, portion of es- —Enrolled defendant’s to inherit wife on its face authenticated, presumed unless af- constitutionally enacted, contrary <&wkey;782(14) law 12. Criminal legislative —Instruction journals. firmatively jury guilty if could not find defendant rea- regular custody act, Enrolled on in its face held satisfied of mental unsoundness sonably Secretary by sig- and authenticated refused. properly Speaker natures of President Senate and Requested charge prosecution in murder House, presumed constitutional- jury guilty, if could not find defendant ly journals legislative enacted where are silent reasonably from evidence that satisfied doubt, or leave matter in unless matters re- mentally of commission unsound time at quired journals omitted. be entered are alleged properly, crime, held refused. Legislative 19. Statutes <&wkey;285 record should — <&wkey;796 Criminal cap- law —Instruction be construed a whole. as and uncondi- absolute ital punishment Legislative record should be alternative, imposed but tional, punishment, as construed jury’s dеtermining discretion, held refused as properly whole whether statute argumentative. constitutionally enacted. capital punishment is au- Instruction that thorized, commanded, is alterna- <§=283(l) 20. Statutes Governor’s —Where punishment imposed at dis- never tive cretion of prosecution message showing correct number of bill properly refused murder held to be amended accompanied Senate argumentative. as message House, presumed both passage, though houses concurred clerical <§=796 14. Criminal law —Instruction th%t message. error appeared Senate jury’s determination as to imposition cap- message showing ital should punishment Where Governor’s controlled their correct accompanied presiding message judge, conscience, not directed number of act Senate House, tionally argumentative. presumed, held properly refused as that law was constitu- Requested capital enacted and Houses punish- in concur- instruction that amendment, notwithstanding except by jury rence ment is clerical never visited on their appearing message error responsibility, own plated Senate and that it is not contem- relating suggestions House amended. section number of bill of their conscience by presiding judge, should be directed held rejected properly argumentative. taking <§=248 21. Statutes —Time effect of <§=805(1) law —Instruction electrocution statute depends statute’s burden plea to establish relating provisions, Constitution, and law “reasonable held insanity” taking (Laws effect of acts 1923, p. penal properly refused. Code 5309, 5310, 5320, §§ 5295, prosecution, requested In riurder instruc- 22). 5531; Const. 1901, proof §§ tion as to burden of of crime and of de- Sept. fеndant’s 29, 5309, 5310, (Laws 1923, p. ex- held 759), refused for Act pression that burden was on changing defendant to es- Code §§ method plea guilty “by penalty tablish electrocution, of not reasonable of death must be in- insanity.” terpreted-as gard taking time effect with provisions, own Const. §§ <§=9I3(I) 16. Criminal law Unfriendly at- — (Code 1907, 7805), 22 and Code mosphere accused murder of providing penal pro- law unless otherwise father-in-law, held not shown where families vided, days should effective until after had been friendly people approval, view Code §§ supported him. prosecution of defendant for providing <&wkey;255 22. Statutes —Statute for ex- father-in-law, atmosphere murder of unfriend- ecution sentenced persons death held ly to defendant’s interest was not shown where effective law after penal days approval friendly families had been trial port and defendant on ^ (Laws 1923, p. 759; 1923, §§ 5309, appeared sympathy sup- to have full 7639-7652). Code 1907, 5310, 5531; §§ people. of his approved September (Laws Act <§=1188 17. Criminal 5309, 5310, 1923, p. 759), Code —Case in which sen- §§ hanging tence was imposed by adopts provisions 7639-7652, will be remand- of Code ed provides for execution pronouncement of sentence under new and hanging electrocution law, where electrocution ‍‌‌‌​‌​​‌​‌​​‌‌​‌‌​‌​‌‌‌​​​​​​‌‌​‌‌‌‌‌‌​​​‌​​‌‌‌​‍was penal pending by date, act determined held (Code days approval, appeal 1923, §§ 5296, effective taking 5531, inasmuch ef- changed as time §. Where method of execution was pronouncement hang- itself. since is not extended fect sentence from Digests <S&wkey;For Key-Numbered and Indexes other cases see in all KEY-NUMBER REPORTS 216 ALABAMA lay upon reading; that de- deceased fendant stood his bed acts prior &wkey;225% 23. Statutes —Provisions yards from Leonard about 30 considered statute incorporated immediately fired; when the shot was part thereof. escaped afterwards defendant and Leonard prior statutes, construing act, -which automobile, going adopts, in- to defend- considered defendant’s and to be treated are forming corporated of act. plantation. into and evidence ant’s The defendant’s was to the defendant was of un- that effect by @=31219 Criminal law —Death sound mind homicide. at the time after imposed appeal could be electrocution Hasty Golden, tes- a for the witness hanging, electro- where of sentence by lieu county Elmore tified that he sheriff of of- was time of effective was cution statute (Const. had, day shooting, §§ 22; Code arrest- fense and after the §§ ,5310). Bachelor, Hayes ed Leonard and person 7, providing shall deсeased, Const. shooting with connection punished by law established virtue of but Montgomery and two were carried power denying offense, prior and jail. county Leon- witness was asked Assembly, by suspend General laws to held any there, ard had made imposition prevent sen- death not presence with reference to by electrocution, §§ tence shooting. objection, Over defendant’s remanding of case after replied imposed, affirmative, by hanging where witness fur- had been sentence electrocution prior effective pres- statute was ther ent; or testified that there 8 meu of offense. commission all, that them but could witness knew say by not whether call them all he could statute <&wkey;l Repeal 25. Criminal law 192 — name; that he knew that he nor neither conferring jurisdiction resentence not any any presence in his оne induce- offered to resentence power court of circuit deprive any ment to or made threats Leonard (Code remanding case statement; make a some one of those §§ present 7648, designed brought 1907, §, Repeal hear Bachelor there to down of Code pro- jurisdiction negro where to resentence make confer statement. The witness that he judgment ceedings in final have terminated further Leonard testified that stated adjournment, jurisdiction held was lost deceased, and, being why, shot asked stated power deprive resentence court of circuit that he had done what told defendant murder, prisoner under Code convicted do, pay him to and that defendant was to continuity proceedings 5309, 5310, where doing it; (Leonard) de- he appeal was him cause maintained fendant had been to the house of deceased manded. before; or two times three and that defend- &wkey;>l192— Jurisdiction 26. Criminal law shooting, ant was him at with the time mandate is conferred proceed “squatting peach down the little tree.” court. appellate The witness further testified that Leonard proceed with court to of trial Jurisdiction shooting demonstrated with a broom how the appeal mandate is conferred ease done, (Leonard) had been “how he continuity proceedings court; be- appellate along gun got walked with the until he by appeal. ing maintained porch, gun how raised he to shoot <&wkey;1208(3)— Criminal him; his heart and he said he (defendant) failed charged sen- of law relative notice with crawled back told tence. room, one in there but and de- charged committing no- with crime One up fendant raised аnd looked the window to sen- relative at time in effect tice tence. lawof (deceased him that both of them and told his wife) he were in there and when he did The witness further went back shot.” Court, Appeal Coun- Elmore from Circuit during defendant left the room testified that Smoot, Judge. ; George ty E. present confession, that he when Clyde Bachelor was convicted Reese foregoing part of Leonard’s confession the was appeals. degree, and he in the first murder made; he was asked affirmed; Judgment for sentence. remanded say, negro had wanted to hear what argue said not care to killing and defendant he did charged with “was Defendant negro. with Smith, father-in-law. The Lamar C. that, Defendant’s father testified in wit- tendency that de- evidence is of the state’s opinion, Hayes negro defendant was of unsound Leonard,, ness’ proсured ten- a fendant mind, weakling; deceased, was a one of his farmer, weak- motive to kill the ant upon from the time he was a child was that being the death of deceased his nesses cry wife, he daughter, he would down whenever would inherit break estate, financial aid portion talked business with thus of deceased’s baby witness; cry financially; profit “he has been that Leonard shotgun through life, a man. It is he even when all his fatal shot with fired the cry except residence, when didn’t he a fact that he deceased’s while a side window Digests and Key-Numbered all Indexes cases same and KEY-NUMBER @s>Eor see other BACHELOR v. STATE (216 Ala.) always get wanted; got he admissions in subjected didn’t what of a nature confession admissibility what asked for.” the same rules of jury, prima closing argument direct coun- confessions and In his are therefore involuntary made, substantially, facie the fol- and inadmissible. Wilson for the state sel lowing objections Shelton of de- remarks to which the MeGehee v. fendant were sustained: 159. The city Chicago “Two criminals in the caused of defendant’s trial ancestors and kinsman on the death Frank. of one competent a criminal case is “If the found defendant was and the exclusion of constitutes insanity, reason of he would be sent State, asylum reversible 572, 201 Russell Ala. error.. v. insane years.” and turned two or three loose ,916; Wigmore 232, 78 So. on Evid. 1936; special 14 R. L.C. 621. The remark of charges following requested The were re- prosecutor he had the effect that been defendant; fused “watching during defendant the whole trial you reasonably “D. If all from satisfied and he has not shed incurable a tear” was the evidence that at the time of the commis- misconduct, and failure of the court to sion оf the defendant was crime grant a new trial constituted reversible mentally unsound, you guilty. cannot him find 1901, 6; 5632; 1023, Constitution § charge gentlemen jury, you, “A. I the' State, 899; 693, Bestor v. 209 Ala. 96 So. that, you responsible, and if find the defendant State, 411, 454; Moulton v. 199 Ala. 74 So. B. guilty further degree, him murder in the first find Drennen, 338, duty your R. &L. P. Co. v. Ala. fix his 175 57 So. it becomes further punishment. Capital punishment but it is not commandedor authorized, is 876, 1037; 1914C, Ann. Cas. v. Davis State compelled, whatever (Mo. Sup.) 297; Ferrone, 190 S. W. v. 97 may enormity is of the crime. It 258,116 Conn. A. 336. The remarks of state’s unconditional, and alternative, an absolute closing argument constituted mis- imposed except punishment, it is never conduct, and a new trial should have been jury. discretion granted. Gonzalez, B. R. L. & P. Co. v. 183 I.charge you, gentlemen jury, “B. of the 273, 80, Ala. 61 you 1916A, 543; So. legally responsible, Ann. Cas. find the defendant guilty State, 411, v. 454; find Moulton further 199 of murder Ala. 74 So. your degree, duty, first it becomes State, further un- 533, Cole 104 Tex. Or. R. 286 S. W. law, punishment. fixing fix der such give request- 204. The failure to you punishment fix either it at im- charges (A-l D) ed was reversible error. prisonment penitentiary in the for life or at State, 16, 1012; (A Parrish v. 139 Ala. 36 So. death, your discretion. Under the law of B) State, 70, Brown v. 109 Ala. capital punishment visited never (Code 1907, Section 5304 of the Code of 1923 jury responsibility, on their own 7648) repealed by operation only by was conscience, controlled their own contemplated suggestions 5320, only is not said section 5304 was the judge their conscience shall be directed under which a convict could be resenteneed. presiding any power. human There now no law can charges “A-l. hanged and no court which can direct case, plea trial of a homicide where the 'of State, that he be electrocuted. Aaron v. 40 statutory plea pleaded not guilty and a 307; partе Newton, Ala. Ex 94 Ala. 10 insanity interposed, reason of are both apparent 549. It is from So. the whole record proof plea the burden of upon first misnumbering satisfy jury beyond that of error, the section state amended rea- guilt defendant, but, simply way sonable doubt of was a clerical in no mis- plea, proof second burden as to the is leading. self-correcting, The record is plea on the defendant to establish finally passed signed by the bill as guilty by reasonable of to the rea- respects Governor in all valid. Geo. Bolin jury by prepon- sonable satisfaction Irrig. Wyo. Co., Go. v. North Platte 19 evidence, derance of the and a reasonable doubt (N. S.) 868; 121 39 L. P. R. A. Town of acquit is not sufficient to the defendant under Wade, Walnut v. 103 U. S. 26 L. Ed. 526. plea. weight sufficiency of the plea evidence as to the one is that the state satisfy jury beyond must a rеasonable McCall, ‍‌‌‌​‌​​‌​‌​​‌‌​‌‌​‌​‌‌‌​​​​​​‌‌​‌‌‌‌‌‌​​​‌​​‌‌‌​‍Atty. Gen., Charlie C. and Thos. E. doubt, whereas, plea, as to the other the de- Jr., Atty. Gen., Knight, Holley Asst. & reasonably satisfy jury by fendant must a Milner, Tate & Renau and Huddleston & preponderance of evidence.” Glover, Wetumpka, all of for the State. Rushton, Rushton, Orenshaw & Mont- reply that a defendant makes to a Oakley gomery, Melton, Wetump- W. statement wherein accused of crime appellant. ka, for confession, nature of a but is Testimony inculpatory toas of an statements of a nature eodefend- statement or ant, defendant, homicide, declaration, predicate made and no after the absence of it is volun- necessary. tary Delaney State, are not admissible. Meadows v. 136 v. v. v. Ala.' State, State, 183; required Everage 204 Ala. 34 But So. So. 183. shown 404; voluntarily made, 113 Ala. So. Blair to have been 'the facts and State, Inculpatory making 99 circumstances here shоw the of thia REPORTS ALABAMA pounded grandmother Am. for no statement roborated the might Braham v. Parsons ment by 'To ment sustained James Cas. statement was 385; 685, Brown, Russell derson Charge proper derson state’s Burkett Watkins v. Cagle Brown of P. Co. Ann. Cas. ative tion is to date established 39; as that lished er v. the Washington Weatherford, Eliza mission Act ment State, Shields Golden BROWN, predicate force as reason defense counsel effective, a conclusion of justify effect Hayes 187,101 effective 1918B,119; Hollingsworth the new section David v. Rep. Burney it shall upon State, v. have been counsel and excluded it from 40.Ala. v. v. v. V. D is not a adopted by the Senate. v. v. Am. State, to witness v. 1923 does not v. counsel, of 1907 continue Ala. of such of Gonzalez, State, effect of State, State, State, 1916A, State, State, a promulgated to all offenses State, State, Leonard,' others highly J. validly passed, v. v. go St, Rep. new offenses committed date 8 Port. 211 Ala. result objection 49; State, thus promulgated offense; Dowling Torrey, repealing ^[1] voluntary. Heningburg been 201 Ala. into effect Charges So. negro 21 Ala. so as made. Edwards 209 Ala. 209 Ala. argument subsequent 81 Ala. -143 543. Section Macon, 54; was correct statement section 7 prejudicial. Jeffries To render the Fla. of a verdict of 878. At 16 J. became House was not So. laid for such curing any Ford v. 174. The 40 Alá. made to the witness the Electrocution 346,100 statutes as 33. When witness, repeal Miles v. to make same legitimate argument. must be 100 Ala. App. where it 246; and it is Montgomery county (Fla.) A and act must upon committed whether on a future date. account v. since was prior operative. Mill- of the Constitu- 78 So. Weatherford v. confessions Bush any 69; State, question Electrocution State, 109 So. crazy, argument 95 So. 20 So. 103. prior to the B. cured. B are bad. Fountain v. grossly 111 So. the amend- Miller, error sections 318. testimony. State, 61 So. not estab- not confession the court have been argument rate, 916 An- Moore v. the same and cor- provided of R. L. & the com- further, hanging prior -to So. of 40 Ala. imper- great- called State, State, argu- Com- jury, favorably Ann. ; 175; 171; pro- State, law. Act. An- the made in the 43; 34; im- To of the truth v, of ‘ n necessary it be of the and and shown to be when the that he remained jail, firmation was this—when State, State, ace or all dence. Banks v. ful consideration ion that ain the was of presence truth terial Sellers, 30or behind I was true, fore dence was fire the witness grandmother, thorities, of the court fendant’s sustained. expert person questions insanity ris, Williams about and Reuben with er.”- “That [2, However, ^[4] “I knew Under [5] The state’s ^[6] sufficient to authorize its admission witness influence of not know 169 Cal. admissible place, given 3] she shown with subsequent The steps Roxie respect of Leonard’s confession was there; I 211 Ala. 171 encouragement him with inquired witness shown to everything fatal committed mind of Ala. dealt for the state to court, in great-grandmother, same observation properly her away but if Ala. year Hasty clearly confes'sion of Williams, Bill Roxie presence his rule Smith. in this exception the name of shot was not App. 427, voluntarily App. that she died mother, planned everything; hope a he went with if he confessed—this when he fired the shot.” statement, about witness such State, sitting great-great-great-grandmoth- Macon, of stating: objection pistol confession to the witness the witness in reference to the heretofore the it was silent sufficient voluntary Golden was made give this old I Williams, suicide?” admitted the record confession P. or fear respect 87 So. made at voluntary, affirmation As to his accused was through —that Roxie 84 Ala. 21 So. So. This, his had in or that he 919; People up “Was she subsequently Hayes made. one he would witness testified: show that defendant, and that darkie “crazy.” banc, —that excited men 183; testified part stated, were free from and the referring Williams, necessary thing, under the Mat 404; qualify 953; Everage of suicide standing right was true as Whitehead acquaintance affirmed McGehee so of Leonard Delaney after care question has said v. Rowlan v. Braham every J. 752. free testimony 4 So. is, I Williams, the truth crazy much of porch Blair such affirmed this Parrish that he was 20 rulings it was it was in a non- great- made made Roxie more opin time true. Har 382. evi ma evi- af au de be v. v. 'by falls within prejudicial move by his motion to direct a mistrial and his ar- argument gument here, the effect: trial new can stated in B. should be to form an accurate and discharge used and overruled said his and there has not shed a counsel was so hate to make such a ness with these by you. character watching and as to his of defendant’s your sufficient, before this did sel for jection been dead a dition.” don’t know Mat Williams. to move the court to court remarked that it has instructed the of the bill of effect * cused objected continuous Smith should dict.’ ‘Gentlemen of the ence to the conduct or . “That, “I knew her “During “I knew this “Whereupon the defendant’s As Mat This does Stated Reuben ** "not commenting upon the court been great-grandmother; entirely destroy summons court, the remark of honor the their mental condition. its during the trial that the witness testified: theory and instructed the intend to do if the special dead. injurious 61 So. 84, in another but exqepted.” following that neither It influence Smith was record how old she was jury and, ‘If the intimacy has long the defendant R., jury Williams: exceptions, another, is that opening argument during tear.’ improper brother, your boy’s great-aunt, I knew above remark said what grossly improper exception paternal great-grandmother, parties I counsel time. I knew his mental con- L. show the corrective acquaintance jury, any shows, and summons motion to don’t know how you making up your wholly effects. regard- promptly awarded, (Ann. P.& expression: an error their sinister honor improper way, appellant while I know certain Parrish The defendant on the motion, the appellant, direct court anything wrong, shown to such and the defendant the remark of state’s ought will not be considered objections. her in her in Reuben rebuke, appearance remarks Braham she was called prosecuting attorney that: Co. v. to usе the trustworthy opinion Cas. whole trial and he remark with refer- inadequate when I knew her.” would enable him please, awas discharge acquaintance sustained .the a mistrial jury testimony that I feel the counsel 1916A, 543), Jones statement and nor retraction Smith; another.’ Gonzalez, with Reuben are action taken T have been special State, supra. as indicated ordinarily general lifetime, as follows: BACHELOR influence, prosecution of the wit- Judge I cry baby, a brother thereupon compelled incurable 543; language long contends objection. sister of suppose said and to such a charge he.has highly to re- and I coun- Aunt Tate then jury to jury ver- rule 183 Birmingham she ac- ob- to 455, 113 So. 403. Ala.) not to fendant feited no merit ment, “stated, sel here fusal of cuting attorney, fact not loose; less of of discussion. Cross v. marks land, stated that counsel fоr zalez, nied a within the prohibits as ‍‌‌‌​‌​​‌​‌​​‌‌​‌‌​‌​‌‌‌​​​​​​‌‌​‌‌‌‌‌‌​​​‌​​‌‌‌​‍is marks ing ably already more calculated to excite remark here in cited and relied on counsel was rulings yet and error to 5632), sary. served. We are therefore corrective ficient contrary ception.” v. STATE ^[11] In Bestor v. Commenting [8] The ^[9] [10] The liberty, testify it was of a fact within jury, objectionable statement, yet 64; Birmingham conduct argument, all Russell italicized, not to kill him.” Charges 3, his appellant of the that defendant had forfeited his not transcend for the defendant complained the want new objected properly 1 Ante, given to what not a to Ms comment same observation and he was liberty, avert instruction will In this while was exception asking bill of court exceptions Electric Co. v. trial because no complained Hall v. taken persisted state’s 403; in evidence and was p. 336. on this violation 171; Cagle turned State, not be question, and the court overruled the true, plea to so much of the statement in that case was own behalf prejudice to avail himself refused. in the substance, jury, the Y, B. notice; that defendant be turned respect prosecuting of were counsel made in of counsel exceptions recites; direct mistrial. Anderson v. R., So. Ann. Cas. proper jury simply above loose, Electric Co. v. Cleve predicated argument, said that defendant of the statute which insanity.” of in that boundary legitimate the court sustained State, L. the statement of the in different 2 Post, prejudice than the X, closing argument, adnvitted Cleveland, post, p. appellant, his applies & P. (Ala. Sup.) wholly unneces- (Code objection of a character stated, asking the affirmative court was suf adverse the conduct State, they the defendant observatiоn complained closing argu repetition the court de- p. probably true, Co. Gon he had for shown. State, improper, jury case was The de there that the adverse “in his failure forms, 1916A, ruling prose it was coun right prob right clos Ala. ex- ob re re ALABAMA REPORTS pathy was an ant’s ferentiate defendant intimately from the then the Chief Justice presented errors, properly fendant, appear manded to for ex wise reasonable of same same fendant such Moulton was been hanged execution, statute. sentence, dered defendant criticism Brown v. which concur. tion the date case for of BOULDIN, JJ., concur. sons v. Rep. 193; concur of the After careful The facts ANDERSON, [16] The [13-15] SAYRE, ^[12] the said to death, N. E. rel. Kemmler application ease chance proper pronounced to “be after bad, changed by Hall v. social intеrest, community, ordered the on judgment Charge and atmosphere State, 81 sentence, more is remanded refused. enormity for They Code of Charges the verdict is so on uses the justify that case support conviction. the neck until the guilty and and the deceased were majority “general atmosphere” sentence circles, associated, Parrish v. appellant father-in-law, the in accordance 7 L. SOMERVILLE, of Moulton Case affirmed. far the State, ante, p. Brickell, refused. heinous insanity,” annulled, it was D was not a correct circuit court as to the here. The the are examination judgment the Code.” of conviction record, oral as execution of denominated, recognized 10 199 R. A. 1923, §§ A operation to be in performance they being Charge expression, both unfriendly accused argumentative it directs from this. Durstоn, 119 N. Y. J., method have of the Justices did properly granting only charge for fixing the offense the used on the trial 715, Am. families we accordance B, and crime. people, Since he is remandment of the proper sentence. 5309,5310; the families of had the such as A-l, with section 5296 deceased was sentenced refused to the find no reversible of to obtain arguendo, of of THOMAS, GARDNER, of all conviction, the moved in' the the of the metñod of Elmore of a dead,” refused. “not execution that sentence law, of language affirmed and opinion living punishment this reason the defend doctrine, clearly dif- finding case death the developed this could new and were full questions with the friendly, St. and if there the de and greater to “be county People a new execu other is trial, sym Rep. Par ren- Am. court to fix sen- and the the the de re J., of 23 So. thе House is leave matter in ney ber panied firmatively journals. tionally enacted, now in force. Buford affirmatively appears that the Governor. is that and herewith,” in that the A. scribing the pealing that the law was less be entered action which must the Ex 484, gomery message showing the Constitution was in all message nals record with President of the Senate and the 40 So. et court, sitting only on the ed on tion number of appears condemned to of D, 248; Judge, etc., power amendment tence concurrence BROWN, [19,20] It prima al., Jefferson parte execution in providing journals, 'General that Senate found the 24 of be overcome 25 C. L. requisite in concurrence having expired, the the sentence and to authenticated of the matter, every is construed as all laws or both of R. silence Jackson Beer facie Howard-Harrisоn Iron Am. House If the journals rule the was not made to 516, Senate J. procedure State ex County Crow, suggested by the (Laws Howard enrolled in houses, is sufficient to a prescribed the statute will be sustained. for the the court, St. certainty Senate to it ex death, prevailing the amendment Bottling It clerical date for is On banc, 72 accordance with Journal, relating to the sec must custody the House in the action of Rep. 42; and this journals rel. constitutionally journals. as doubt, 1923,p. message; Am. of the House fail to show Rehearing. parts appear by constitutionally enacted, affirmatively appear rel. suggested by bill it is not correct and has examined to matters act, regular Act in such by electrocution, execution respects followed, order error the Porter, St. a whole it Crenshaw Works v. of the notwithstanding it dealt with in this unless contrаry presumed approved Septem- Board 759), presumption Rep. House signature amendment, execution it was constitu laws number, the Governor’s only appears Ann. Cas. 1914 cases; say merely Governor, Constitution, proposed by the Secretary Co., it duty entitled “an jurisdiction required the statute two houses Speaker of manner of on its face enacted. legislative within the of the as record when relates to being the convicts, Revenue journals that appears Gaston, conflict accom Joseph in the Attor- Mont silent L. R. jour pre- can the un the af on it BACHELOR STATE Ala.) made, contention, provides: appellant’s Section 11 now 1923, repeals September 29, of Act day October, 1926, 1st “On of before authorizing begin supervisors the Code of section 7648 of of shall board convict eases, necessary building room or in certain construction of such as of this a resentence of convicts provisions carry required to out the the cir- no law hence there is act, shall such construc- continue change the sen- is authorized to cuit court completed; building room or tion until said and said board of convict directing judgment pronounced in the tence supervisors also, shall by hanging to executed sentence to be directing the one electrocution. day October, 1926, of on or said 1st before to be executed necessary ap- purchase for of such contract carry pliances may provisions required out the say proper that what act; [21] We deem when of this the execution person punishment original a with refer sentenced to said of death of day day subsequent last set a repeal of Code of for section 5295 ence February, 1927, the such sen- execution of of assumption that mistaken of 1923 provided act; must tence be as printed as section 5320 in vol what when the execution such sentence is set of the manu of the Code 1923 was ume of day prior day March, a 1st of prepared by script code commissioner pro- execution such sentence must be as now of as the Code when document was chapter vided article Code of of August 17, approved Alabama, by (Italics supplied.) Act of 1923 1907.” of (Laws 1923, p. question, ex further But .question pe- There can be no that this a of we find this amination’ statute, meaning within the nal of section law, section the true state as that Code, unless it can be said authority printed merely in the Code under provided act,' it is otherwise adopting Code, of section 4 of promul- took effect and was established and September provid the Act hence gated part the law the land ing the electrocution convicts sentenced day November, Washington 29th death, interpreted light to its must Dowling Eng- (Fla.) 109 Ross Newv. provisions, provisions and the sec own Mtg. Security Co., land Constitution, 7 and 22 and sec tions tion 5531 1907), (§ Code of 1923. Code act, reference, adopts [23] This all of pro last-mentioned provisions chapter the the of article : vides construing the act sixty penal “No act shall until take effect these statutes are be treated and consid days wise approval thereof, after other- unless incorporated ered into formed specially provided in the act.” act, so when construed it is complete itself, providing the method for determining ef [22] In when this act took execution conviсts condemned fect, summary provisions -of its is useful. —by hanging up including to and the last provides execution of day Section February, 1927, electrocution by electrocution, prescribing death sentences that date. Sloss-Sheffield & I. S. Co. may Smith, time execution fixed 265, 29; Savage within which v. Ala. 175 So. 57 v. by the court. Wallace, 575, 605; Darring up 2 Section names the executioner until 396; ton 50 v. So. Phœ January 1, 1927, sheriff, including as the Department, Co. v. Fire nix 117 Assurance deputy in his or his absence or dis- disability, 468; case of 23 Ala. 42 L. R. A. So. Cleve ability, their in case of such App. 336, land Ala. v. 16 persons may appointed by board only specific- this, Not section 11 of the act supervisors. convict ally provides for the construction of the provides the issuance of room, Section 3 for purchase death of and authorizes disposition. warrant and death its equipment day “on or the 1st befw'e prescribes duty Section 4 of the October, 1926,” sheriff legisla- manifesting thus compensation transferring for and convict to suspend operation tive intent not to be- “Kilby prison Montgomery.” yond provided by time 5531 place provides Section 5 and method of Code. pending his confinement of the convict execu- doubt, therefore, [24] There can be no tion. day act went into effect this November, 29th prescribes place Section 6 execution. being long prior and this to- n provides may present ap Section 7 who of the offense for which commission witness the execution. pellant convicted, provisions neither the provides 8 Section for resentence in 22 ease of sections 7 and state, the Constitution of this- escape and rearrest after date fixed for nor those of the federal Constitution application execution. invoked to save can be statute to the of this- provides appellant’s Section if the 9 for execution ar- Kemm case. In re 9; ler, rest before the date fixed for execution. L. Ed. 136 U. 10 S. 34 51 S. Ct. provides by procedure 684; State,. Section 10 for the Aaron 39 Eliza v. v. Ala. n respites granted by 693; Luigi Commonwealth, case the officers in v. the 39 Ala. Storti Governor. N. R. 178 Mass. 60 E. 52 L. A. 520- REPORTS 216 364 ALABAMA ment has resentence, had terminated in risdiction had been ment manded to tion to fix the date for the Aaron appellate statute 1907 ceedings. tence of death quent 514; 369; conviction and the Code Ala. confer ceed. apt lant committed tence. execution alleged repealing he was execution Oode ued sentence February, 1927, whole LOWERY and feat Supreme I. Another defeat germane thereto. modify reliеf [25, All the Equity Ala. A proceedings is maintained death So. 237) without cause law, purpose, authority. App. 399, 66 deprives (7648) of the Minto v. of 1907 26] There repeal Rehearing sentence “cross-bill” Aaron v. Ex jurisdiction application Not so App. 253, application recovery into the Code brought repeal recovery Justices tribunal Court of 1923. executed was in force at the <&wkey;195“Cross-bill,” sentence remains In such parte view, where ex convicted designed appeal court change. of death appellate of that ROSENGRANT. here, sentence rel. of section 7648 the murder delayed and he failed There the or Adams, before been Denied statute was by original sentence had concur. circuit court is all that no is defensive well — cases, a final until the execution Atty. lost court to Alabama. provided wherе the law section as to confer He was pronounced merit proceedings original complainant overruled. fieri, electrocution. repeal 844; Wright v. some brought by as the purpose and the Ala. the court June 187 Gen. term, original bill, repealed trial court judgment offense for in the contention complete the respect execution put App. passed mandate authorizing it as Ala. by time the complainant the last by and the of the Code May 19, 1927. jurisdiction manner of its Smith in his final v. continuity of of the in its forward and (1 Div. expired, necessary time for the cause on notice law. authorizing part of the of the appeal Gunter, before for resen 213 Ala seeking so after the this adjourn appeal, contin 65 modify day power of the nature subse- appel is re judg That 450.) ease rule pro pro sen sec- аnd cross-bill him the matters involved the 134 Ala. So. So. ju de- or Lowery and bill.] ing firmed. bill The issues raised to the cross-bill was not demurrer was Ala. Ala. Mobile, complainant cern cross-defendant relief mane Burke v. and defendant sustaining cross-bill, sought by Saffold Davis complainant jurisdiction, between the Robison Hunter, Am. St. Mer. pellee. Jones among Bank, 207. A cross-bill defendant Stow v. Miller v. & Montgomery Merchants’ Ins. cern held demurrable. mand [Ed. Appeal Webb & The cross-bill Bill Outlaw, Kiiborn & Equity Masterson, complainant’s Riddle, Where Phrases, thereto. Co. Note.—For other Cot. Berney,. two or legal subject-matter Rep. 722; Bellinger Bozeman, from Circuit Cook, equity by Rhodes, which L. Burke, <&wkey; multifarious. Shepard subject-matter original the cross-bill does not make the demurrer of appellant. George Robison, Co., So. 798. The fact that alone Vickery, First and Second has no demand by 6550; Bickley R. Co. v. 195—Cross-bill it will parties Lockett v. Rosengrant. Judge. N., more original complainant Lowery against Co., claim should be original bill, germane Enterprise and Brown & M. another when Ala. 617. could raise complainant Ben Smith, Mobile, Bell raise new issues relat- cross-complainant, Lowery appeals. interest Where Rosengrant, defendants. Whitfield sustained thereto. 437; Boyd Court, even where some of do this cross-bill relate definitions, Abels v. Planters’ be filed May Gulf Rosengrant McKenzie, Henderson v. Hurt, Glass v. 63 L. R. complete legal cognizance. McLaughlin, original bill, alleging ‍‌‌‌​‌​​‌​‌​​‌‌​‌‌​‌​‌‌‌​​​​​​‌‌​‌‌‌‌‌‌​​​‌​​‌‌‌​‍Co. Mobile v. From a decree equity 227; Boyd against Series, Comp. 930; Baggett original had be due Lehman, Bickley, original complainant Kohn, so, apportioned the burden and cross- see Masterson question. So. 513 had 1st Nat. County; no con- assumes A. 673 original Stamps, original Hunter, one co- no de- justice Words Cross- Cb. v. H. G. all of relief Hall,’ con- ger- bill. bill. Af- 136 183 ap- & ;’ Key-Numbered'Digests and Indexes in all @=>For and KEY-NUMBER oases see oilier

Case Details

Case Name: Bachelor v. State

Court Name: Supreme Court of Alabama

Date Published: May 5, 1927

Citation: 113 So. 67

Docket Number: 5 Div. 976.

Court Abbreviation: Ala.