Gaines v. State
41 So. 865
Ala.
1906
Check Treatment
DOWDELL, J.

The defendant was tried and convicted on an indictment for murder and was sentenced to imprisonment in the penitentiary for life. Prom the *21judgment of conviction the present appeal is taken. The indictment which charges murder in the first degree omits to aver the means with which the offense was.committed. No objection on this account was raised to the indictment in the court below-by demurrer or otherwise. The objection is for the first time raised here.

It is insisted by the state that as no question of law was reserved, by the defendant on the trial below, it cannot here be raised for the first time on appeal, and, further, that the question not having been reserved on the trial, it could only be brought here by wiit of error, which was not done in this case. In support of this contention, the case of Ex parte Knight, 61 Ala. 483, is cited and relied on as an authority. Since the decision in that case, a new statute has been introduced into our code (section 4313 of the criminal code of 1896), which brought with it a change in the law as it theretofore existed in respect to appeals in criminal cases. That section, which is found in chapter 126 of the criminal code of 1896, reads as follows: “Any person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the supreme court, may appeal from the judgment of conviction to the supreme-court.”. In the same chapter we find section 4333, which reads as follows: “In cases taken to the supreme court under the provisions of this chapter, no assignment of errors, or joinder in errors, is necessary; but the court must consider all question apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied no injury resulted therefrom to the defendant.” While the-remedy by writ of error under the statute, in all cases where applicable, remains the samé as heretofore, still under the statutes above set out we see no escape from the conclusion that it becomes the duty of this court, when a case is brought-here by appeal from a judgment of conviction, to “consider all questions apparent on the record.”

But it is insiste that, as no objection was raised to the indictment in the trial court, the defect was waived, and *22that there is therefore no error apparent of record. The satute says, however, we must consider all “questions” apparent on the record. The objection to the indictment is here made a question, and is one that is apparent on the record. At the common law an averment of the means with which the offense charged was committed was necessary to a good and sufficient indictinent for murder. And under the criminal procedure of the code it is evident that it was the intention of the law-makers that the averment of the means with which the alleged homicide was committed, and which was a necessary averment in the common-law indictment, should not.be dispensed with, but, on the contrary, should be observed. The form of indictment No. 63 prescribed in our criminal code for murder (page 333), requires an averment of the means with which the offense was committed, So, likewise, form, of indictment for manslaughter in the first degree (No. 60, p. 332), and form No. 61 for manslaughter in the 2nd degree, and form No. 64, for killing in a sudden encounter — each and all of these forms of indictment, provide for an averment of the means with which the offense charged was committed. § 4894 declares the forms given in the. code sufficient. §4906 provides as follows: “When the means by which the offense was committed are unknown to the grand jury, and do not enter into the essence of the offense, the indictment may allege that they are unknown to the grand jury.” § 4911 provides that, “when the offense may be committed by different means, or with different intent, and means or intents may be alleged in the same count in the alternative.” So it would seem from these statutory provisions that an averment of the means with tvliich the offense charged was committed is a necessary averment to a good indictment, and without it the indictment would be defective and subject to demurrer. The principle here declared is recognized in Hornsby v. State, 94 Ala. 55, 10 South. 522.

It is further insisted that under § 4895 of the criminal code of 1896 the indictment should not be held insufficient. That section reads as follows “An indictment must not be held insufficient, nor can the trial, judgment or other proceedings thereon, be affected by reason of *23any defect or imperfection in any matter of form which does not prejudice the substantial rights of the defendant on the trial.” Without stopping to- discuss the full meaning and scope of this statute, it is sufficient to say that it is without application to the case before us, as the question under consideration is not one of mere defect or imperfection in a matter of form, but, from what we have said above, a defect in substance. The means with which the offense charged was committed, however, is not, in an indictment for murder, a constituent element of the offense. The unlavcful ldlling with'malice aforethought, regardless of the means employed, constitutes murder. . Every constituent element of murder is averred in the indictment. The omission to aver the means employed, though in a sense a defect Of substance, and not .one of mere form, yet is such a defect as must be taken advantage of by demurrer. This principle is stated in effect in Hornsby v. State, supra. See, also, the following cases: Oregon v. Bruce, 5 Or. 71, 20 Am. Rep. 734; Cathcart v. Commonwealth, 37 Pa. 114; Wolf v. State, 19 Ohio St. 256. Moreover, § 4333 of the criminal code of 1896, which we have set out in full above, provides: “But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted to the defendant.” This provision was introduced into § 4333 at the time of the adoption of the code of 1896, and therefore became the law subsequent to the time of the decision of Maxwell v. State, 89 Ala. 150, 7 South. 824, and doubtless was introduced in the code for the purpose of meeting the doctrine laid down in Maxwell v. State, and cases there cited. We are satisfied that no injury resulted to the defendant from the. omission of the averment in the indictment. The evidence without dispute showed that the killing was done with a gun.

Before the trial was entered upon, and before the defendant had pleaded to the indictment, he filed a motion that he be allowed to inspect the “transactions, minutes and records of the grand jury that indicted him,” upon several grounds mentioned in the motion, the sum and substance of which were that the grand jury in the in*24vestigation of his case had admitted before it evidence that was immeterial, irrelevant, illegal, etc. This motion the trial court overruled and disallowed. There was no pretense that the grand jury did not have sufficient legal evidence before it upon which to find the indictment. The motion under the-criminal procedure of this" state was without merit. If the grand jury had any legal evidence before it to authorize a bill, all inquiry as to the nature, character, and sufficiency of any other evidence introduced before it is. cut off, when sought for the purpose of attacking the validity and integrity of the indictment. The trial court very properly overruled the motion. See Sparrenberger v. State, 53 Ala. 481, 25 Am. Rep. 643; Washington v. State, 63 Ala. 189; Carl v. State, 125 Ala. 89, 102, 28 South. 505; Hall v. State, 134 Ala. 90, 112, 32 South. 850.

There was no error in the court’s refusal to delay the trial of the case and issue an attachment for the witness Morgan. It was not shown that this witness was at the time within the jurisdiction of the court. Walker v. State, 117 Ala. 85, 23 South. 670. Moreover, it appears that the defendant stated what he expected to prove by this absent witness, and the solicitor stated that the state would admit the showing if put in writing and legal form, and, furthermore, it appears that the evidence of this witness would have been merely cumulative.

, The action of the court in excusing the juror Groom “for a good and sufficient cause” was a matter within the power of the court. The cause not being shown in the record, the court’s action in this respect cannot be reviewed. — Plant v. State, 140 Ala. 52, 37 South. 159. There was no authority in the court to substitute another venireman in the place of Croom. § 5007 of the code of 1896 provides for the discarding of names in certain cases, and the facts here do not bring the case within the influence of the statute.

It clearly appears that the only mistake in the venire in reference to the juror Thompson was the duplication of the number 76 there being no duplication in the name of the juror. The names of the jurors are numbered as a matter of convenience. § 5009 of the code does not re*25quire such numbering, and omission to number the names would not affect the venire. See, also, code 1896 § 4333.

Under the decision in Parker v. State, 102 Ala. 128, 15 South. 819, it was held a good cause of challenge that the person Avas not a resident householder or freeholder of Montgomery county. § 4331 of the criminal code of 1886 (§ 5016, Cr. code 1896), was amended by the act of December 8,1894 (Acts 1894-95, pp. 33, 34.), and this ground of challenge was omitted, and it was held in Thomas v. State, 124 Ala. 48, 27 South. 315, that under this act it is not a ground of challenge for cause that the juror had not been a “resident householder or freeholder of the county for the last preceding year.” The act of March 2, 1901 (Acts 1900-01, pp. 2003, 2004), contains a provision that this shall not constitute ground for challenge for cause. This is the jury law now in force in Montgomery county.

There Avere other exceptions reserved to the rulings of the court during the proceedings in selecting a jury for the trial, but it clearly appears from the record that there is no merit in any of these exceptions. Nor do we think there is any merit in any of the exceptions reserved to the rulings of the court on objections made in the admission and rejection of eAddence.

There Avere two charges requested in Avriting by the defendant, Avhich Avere refused by the court. Both and each of these charges, besides being bad in other respects, .were eliliptical, and no error Avas committed in refusing them.

In sending the jury back to put their verdict in proper form, the court did right. There had been no such separation of the jury as Avould injure or prejudice the defendant. — Nabors v. State, 120 Ala. 323, 25 South. 529; Sanders v. State, 131 Ala. 1, 31 South. 564.

AVe find no reversible error in the record, and the judgment will be here affirmed.

Affirmed.

Weakley, C. J., and Haralson and Denson, JJ., concur.