EASLEY v. STATE
2 Div. 204
Supreme Court of Alabama
Dec. 14, 1944
Rehearing Denied Feb. 1, 1945
20 So.2d 519
The fact that this statute may be affected with “dead end” provisions which may prevent a selection of a probation officer and a fixation of a salary does not authorize its “judicial amendment.” That is a matter committed by the constitution to the legislature.
The decree is, therefore, reversed, and one here rendered, declaring the action of said persons constituting said boards and the judge of the juvenile court, in attempting to fix the said salary and make allowance for expenses, to be null and void and without legal effect.
Reversed and rendered.
THOMAS, FOSTER, and STAKELY, JJ., concur.
GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur in all of the oрinion except that part which holds that the three units must act unanimously in fixing the amount of the salary. As to that, they dissent.
S. W. Compton, of Linden, for appellant.
Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
BROWN, Justice.
This appeal comes to us under the automatic appeal act approved June 24, 1943,
The appellant was convicted of murder in the first degree and sentenced to death. On his trial the state, with other evidence, offered proof of a сonfession made by the defendant, detailing the particulars of the difficulty between himself and his wife, Dotsie Easley, the victim. This confession and the testimony given by defendant on the trial were the only evidence in the case going to show the particulars of the difficulty.
The substance of the confession and defendant‘s testimony on the trial was that Dotsie had gone with her mother and sister to Mobile to visit her mother‘s sister, Dotsie‘s aunt. They left on Sunday and came back on Thursday afternoon on the bus, and Dotsie got back home about 3 o‘clock; and he, defendant, asked what she had been doing in Mobile, and she told him thаt he would have to go down there and find out. They argued a little about it while she was cooking dinner. They had dinner and he said “his wife was pouting around, sulled up and left and went to her sister‘s which was about a quarter of a mile or a little further, and he waited a while and decided to go down there and did go, and had a tаlk with her. He said she was pretty mad at him and told him he was not treating her right and she was going to leave him” and go and live with her father, that she couldn‘t get along with him.
“They talked along a little while and finally she left and came back to their house. They sat and talked until about nine o‘clock. It was in the summer time. Then they decided to go to bed, and when they got in bed they were still fussing at each other. She got up and come around
The evidence further shows that in the fight he inflicted on his wife many wounds, described by Dr. G. N. Williams as follows: “She had multiple incisions of the head, neck, face and ears; had four incised wounds. An incised wound is produced by a sharp instrument. She had four incised wounds in the front and left side of hеr neck and throat; had incised wounds around the back of the neck here extending all the way around (indicating); had multiple incised wounds of the scalp and face; incised wounds through both ears and both ears were just ribbons where there had been many incisions just like this; and there were knife wounds through this gland in the facial artery here (indicating); she had a severance of the jugular vein on both sides; a fracture of the skull in the left temporal parietal region, this is right here (indicating); the bone was crushed.”
The evidence further shows that he was a person of low mentality, but a good worker; nice and respectable among white people but fussy among his own race. Dotsie never regained consciousness, but died next morning about 5 o‘clock. The evidence further tended to show that defendant loved his wife, objected to her working in the field; but that he was jealous of her, especially in respect to a man by the name of Hezekiah, who was her uncle by marriage, having married her mother‘s sister, the sister having died.
The court in submitting the case to the jury charged on the law of murder in the first degree and murder in the second degree, concluding the oral charge as follows: “I have given you the law on the subject and endeavored to clarify it to you; but it is a matter solely within your province to determine what are the facts from the evidence presented to you here on the witness stand. If after you have carefully considered the evidence presented to you here in this case, you are convinced beyond a reasonable doubt that the defendant is guilty of murder in the first degree as defined to you by the Court, then the form of your verdict would be either, ‘We, the jury, find the defendant guilty of murder in the first degree as charged in the indictment, and fix his punishment at death by electrocution,’ or ‘We the jury, find the defendant guilty of murder in the first degree, as charged in the indictment, and fix his punishment at imprisonment in the penitentiary for the term of his natural life,’ one of your number signing the verdict as foreman. If on the other hand, you are not convinced beyond a reasonable doubt from the evidence presented to you in this case that the defеndant is guilty of murder in the first degree, but are satisfied beyond a reasonable doubt that he is guilty of murder in the second degree, the form of your verdict would be, ‘We, the jury, find the defendant guilty of murder in the second degree, as charged in the indictment, and fix his punishment at imprisonment, in the penitentiary for a term of _____ years,’ this would be not less then ten years and any number from ten years up, one of your number signing the verdict as foreman. If, after considering all the evidence in this case, the defendant has reasonably satisfied you from the evidence that he is not guilty by reason of insanity, the form
The court allowed Docie Brown, a witness for the state, to offer in rebuttal to testimony, over the defendant‘s objection, that “Hezekiah” visited at the home of Dotsie‘s aunt, when she was visiting her in Mobile.
After a full consideration of the evidence we are of opinion that the great weight of the evidence goes to show that, as the result of the blow, defendant was so infuriated that he lost all sense of proportion, and became a raging beast, and that the killing was the result of passion heated blood.
It has long been settled law that, “Whether or not the homicide is the offspring of malice is the characteristic which distinguishes murder and manslaughter. In consideration of the infirmities of humanity, the law regards a sudden transport of passion, caused by adequate provocation, as sufficient to rebut the imputation of malice which would otherwise arise. In such case the law imputes the homicide to inherent frailty, instead of malice or formed design. * * * A killing in sudden passion excited by sufficient provocation without malice is mаnslaughter, ‘not because the law supposes that this passion made him (the slayer) unconscious of what he was about to do, and stripped the act of killing of an intent to commit it, but because it presumed that passion disturbed the sway of reason, and made him regardless of her admonitions.‘” Smith v. State, 83 Ala. 26, 3 So. 551, 552.
“‘Mere words, no matter how insulting, never reduce a homicide to manslaughter. Manslaughter is the unlawful killing of a human being without malice; that is, as the unpremeditated result of passion-heated blood — caused by a sudden, sufficient provocation. And such provocation can, in no case, be less than an assault, either actually committed, or menaced under such pending circumstances as reasonably to convince the mind that the accused has cause for believing, and did believe, he would be presently assaulted, and that he struck, not in consequence of a previously formed design, general or sрecial, but in consequence of the passion suddenly aroused by the blow given, or apparently about to be given.’ * * *” Reeves v. State, 186 Ala. 14, 65 So. 160, 161.
The effect of the court‘s oral charge was to limit the consideration of the jury to the offense of murder in the first or second degree. Reeves v. State, supra.
We are not of opinion that the аutomatic appeal statute is broad enough to require this court to review the oral charge of the court without exception thereto. The court erred in allowing the witness Docie Brown, offered in rebuttal, to testify that Hezekiah visited her aunt‘s home while the deceased, her mother аnd the witness were in Mobile. We are reversing on the ground that the great weight of the evidence goes to show that the punishment inflicted by the jury was excessive. Davis v. State, 245 Ala. 589, 18 So.2d 282. The rebuttal testimony was wholly immaterial and not within the influence of Pressley v. State, 166 Ala. 17, 52 So. 337; Braham v. State, 143 Ala. 28, 38 So. 919.
The judgment of the circuit court is reversed and the cause is remanded. The prisoner will remain in custody until discharged by due course of law.
Reversed and remanded.
All the Justices concur.
On Rehearing.
GARDNER, Chief Justice.
The death penalty was inflicted. There was ample proof tending to show that defendant acted under a heat of passion. These facts find no reference in the oral charge of the court, and, indeed, the charge makes no refеrence to the degree of homicide in which such testimony was applicable. There were no instructions whatever upon this phase of the case. We recognize the automatic appeal statute does not require a review of the oral charge without exceptiоn reserved. But when we view all the facts in connection with this vital omission from any instructions and
The application for rehearing is overruled.
All the Justices concur, except LIVINGSTON, J., who dissents, as indicated.
BROWN, Justice.
The Attorney General in brief supporting the application for rehearing asserts: “The jury and no one else can fix the punishment in a homicide case. If verdicts of juries are to be set aside beсause of difference of opinion, then it would seem that the Court is usurping the power of the jury.” [Italics supplied.]
This assertion overlooks the fact that the same constitutional “body of magistracy” that divided the offense of murder into degrees and prescribed the constituent elements of eaсh such degree, conferring on the jury the power to determine the degree in a particular case and “at the discretion of the jury” to fix the punishment, has by the Automatic Appeal Act, in cases where the punishment is fixed at death, imposed on the Supreme Court the duty of examining all the testimony, and if in the opinion of the court the verdict of the jury is contrary to the great weight of the evidence, to reverse the judgment of conviction, though no motion for new trial has been made.
Even before the enactment of the automatic appeal statute cited above, the verdict of the jury in homicide cases was subject to judicial revision. In Brown v. State, supra, Chief Justice Brickell, speaking for this court, observed: “If under temporary excitement, or the influence of passion or prejudice, which will sometimes affect juries, a verdict should be rendered inflicting the graver punishment, when in the dispassionate judgment of the judge a milder punishment should have been imposed, it is his duty to apply the corrective of a new trial; * * *” 109 Ala. at page 84, 20 So. at page 108.
Such judicial revision has never been regarded as “usurpation,” but wise and courageous judicial interposition. White v. Blair, 95 Ala. 147, 10 So. 257; Alabama Great So. R. R. Co. v. Powers, 73 Ala. 244.
Many states havе enacted statutes authorizing appellate courts to intervene and apply correctives in cases where the punishment is fixed by the jury. State v. Ramirez, 34 Idaho 623, 203 P. 279, 29 A.L.R. 297 and annotations 331–342; 15 Am.Jur. p. 160, § 510.
I concur in the opinion of the CHIEF JUSTICE.
All the Justices concur, except LIVINGSTON, J., who dissents, as indicated.
LIVINGSTON, Justice (dissenting).
This court cannot take away the discretion given to juries to fix the punishmеnt on a finding of guilt of murder in the first degree.