33 Ala. 389 | Ala. | 1859
The rule is well settled, that several distinct felonies, of the same general nature, may well be charged in separate counts of the same indictment. Johnson v. The State, 29 Ala. 65, and eases cited ; Commonwealth v. Hill, 10 Cushing, 530; Sarah v. The State, 28 Miss. 267. There was no error, therefore, in overruling the demurrer to the entire indictment.
2. The Code provides, that the indictment “must contain a statement of the facts constituting the offense; ” and that “the act charged must be stated with such certainty as to enable the court to pronounce judgment upon a conviction.”—Code, §§ 3501, 3515. Indeed, it would not be in the power of the legislature to provide that it should contain less. Our organic law has declared, that in all criminal prosecutions, the accused has a right to demand “the nature and cause of the accusation, and have a copy thereof.” He cannot be said to be informed of the nature and cause of the accusation, unless the indictment, under which he is arraigned, sets forth the facts constituting the offense with such certainty, and. so fully identifies the accusation, that the accused and the court may know that the offense for which he is put upon his trial is the offense for which he is indicted, and that the court will be able to give the appropriate judgment on conviction.—Noles v. State, 24 Ala. 692; Murphy v. State, 24 Miss. 590; 2 Arehb. 202, n. 1. The facts which constitute the offense of manslaughter are, that the accused has killed a human being, that the killing was unlawful, and that it was without malice.—"Wharton Or. Law, § 932. That the killing was unlawful is as much a fact, as that human life has been taken. It is as essential a constituent of the offense as the killing itself, and must be averred in the indictment, either by express allegation, or by the use of terms, or the statement of facts, which conclusively imply it. The fact that one person has intentionally, but without malice, killed another, does not
Section 3516 of the Code, when properly construed, is not in conflict with the principles here stated. That section provides, that “neither presumptions of law, nor matters of which judicial notice is taken, need be stated in the indictment.” It has been urged in the argument, that it is not necessary, under this section, where the fact of killing is alleged, to superadd the charge that it was unlawful, for the presumption of law assigns to it that character. If this be a sound construction of this statute, it would follow that, in an indictment for murder, it would be unnecessary to allege that the killing was with malice aforethought; because, the fact of killing being shown, the law presumes it to have been upon malice, until the contrary appears.—2 Bussell on Crimes, 231; Commonwealth v. York, 9 Mete. 93. We should thus be forced to hold, that an indictment, which simply charged that “A. B. killed C. D. by shooting him with a pistol,” was a good indictment for murder. From this it would result, that the same brief and comprehensive form would answer for all the kinds of homicide, and that there need be no-distinction between an indictment for murder and one for manslaughter. But we have seen that, both by constitutional requirement and legislative provision, “ the act must be stated with such certainty as to enable the court to pronounce judgment upon a conviction.” If a defendant were tried under the brief form just supposed, and a general verdict of guilty were rendered by the jury, what judgment would or could the court pronounce ? Of what offense would the defendant be convicted—murder, voluntary manslaughter, or involuntary manslaughter?
We think that section 3516 was not designed to apply to legal presumptions, such as those we have mentioned.
The 3d count was insufficient, and the demurrer to it -ought to have been sustained.
3. Where a defendant pleads autrefois acquit, or autrefois convict, and not guilty, both issues ought not to be put to the jury at the same time. To do .so “would lead to •the absurdity that the jury would be obliged to find on both; and yet, if their first finding was for the prisoner, they could not go on to the second, because the first finding would be a bar. They are distinct issues, and the jury must be separately charged with them.” Until the issue upon the plea of former aoquittal, or former
4. The rule has always been, that a person indicted for one felony could be convicted of another felony legally included in the one charged.—2 Leading Cr. Cases, 137, 457, 462, 560, and authorities cited. This rule of the-common law has been recognized and extended by our statute. For whereas, at common law, if the defendant was charged with a felony, he could not be convicted of a misdemeanor, although the latter might be legally included in the former; under our statute, the defendant may be convicted of any offense, whether felony or misdemeanor, which is included in that for -which he stands indicted.—Code, § 3601. The most common illustration of the common-law rule-just adverted to, was the practice-of convicting- of manslaughter on , a charge- of murder. Indeed, it has been an established principle of law for centuries, that murder necessarily includes manslaughter. Rex v. Mackalley, 9 Coke, 67 (b) This results from the essential nature of the two- offenses, and is not by any means a consequence of the fact that the punishment visited by the common law upon one was more serious than that inflicted upon the other. Murder embraces all the constituents of manslaughter, with other elements of criminality superadded. The person guilty of murder is guilty of every thing necessary to constitute manslaughter;, and of something besides. It seems to be a proposition which is demonstrated by its statement, that the murder of a white person by a slave necessarily includes the manslaughter of a white person by a slave, just as the major-proposition in logic includes the minor, or as the whole-of a physical substance includes its component partsi. When a slave is charged with the murder of a white per>
In the recent case of Bob v. The State, 29 Ala. 20, it was held, that under an indictment for the murder of a white person, a slave cannot be convicted of involuntary manslaughter. If this case be a correct exposition of the law, it necessarily follows, that under such an indictment, a slave could not be convicted of voluntary manslaughter. All the reasons which are urged as applying in the one case, exist in full force in the other. In that case it seems to have been considered,' that because the punishment of manslaughter, when committed by a slave upon a white person, had been increased by statute, and made the same as the punishment denounced against murder, it must therefore be regarded as a distinct statutory offense, and as no longer included in murder. The fact that the punishment has been aggravated, certainly does not alter the nature of the offense, or change the elements which compose it, but simply modifies the consequences resulting from its commission. Notwithstanding the increased punishment to which it is subjected, it still remains, as before, an offense all of the constituent parts of which are necessarily included in murder; audit comes, therefore, within the very letter of the latter clause of section 3601 of the Code, which provides that “ the- defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged, whether it be a felony or misdemeanor.”
In the State v. Waters, 39 Maine R. 54, under a statute which provided that assaults with intent to murder, kill, maim, rob, &c., should be punishable with imprisonment in the penitentiary for not more than twenty years, it was held, that if the defendant be indicted for an assault with
The decision in Bob v. The State, supra, is in direct conflict with the previous case of Stephen v. The State, 15 Ala. 534, which is not noticed in the opinion, and in which it was held, that under an indictment for the murder of a white person, a slave could be convicted of voluntary manslaughter. "When the case last referred to was decided, the statutes defining and regulating the punishment of these various offenses, when committed by slaves, were identical with the provisions of the Code on the same subject.—Clay’s Digest, 472, § 2; ib. 413, §§ 3 and4; ib. 439, § 12 ; Code, §§ 3312, 3084-5, 3601.
A conclusive test of the correctness of the principle asserted in Bob v. The State, supra, is afforded by supposing that a slave is indicted for the manslaughter (either voluntary or involuntary) of a white person, and that on the trial the proof makes out a case of murder. If the rule adopted in that case is a sound one, the defendant could not be convicted on such proof, because the theory of which that rule is the result is, that the two offenses are essentially distinct and different, and that the manslaughter of a white person by a slave is not included in murder. He would be a bold judge, who, in the case supposed, would hold that the defendant was entitled to an acquittal, because the State had proved too much. And yet the only ground on which his conviction could be justified, would be that the offense proved necessarily included the one charged. Mr. Bishop suggests, as a definition of manslaughter, “the unlawful act which results in the death of a human being; ” and adds, “In this definition murder is also included; and properly so, because an indictment for manslaughter may be sustained while the proof is of murder.”—2 Bishop’s Criminal Law, § 659.
After a careful consideration of the question, we are forced to the conclusion, that the ruling of the court upon
Under an indictment Avhieh charges ‘ a slave ’ with the murder of ‘a white person,’ the defendant maybe convicted of voluntary manslaughter; and if so convicted, and the judgment is arrested without his consent, he can not be held to answer a second indictment for the offense of Avhieh he has been once lawfully convicted. If, however, the judgment was arrested at his instance, he may be again tried under anew indictment, charging him with the offenseAf Avhieh he was found guilty.—State v. Phil, 1 Stew. 31; McCauley v. State, 26 Ala. 139; Slaughter v. State, 6 Humph. 410 ; 2 Leading Cr. Cas. 554; 1 Bishop’s Criminal Law, § 673.
5. The pleas of autre fois acquit and autre fois convict consist partly of matters of record, and partly of matters of fact. They must set forth the former indictment, and the acquittal or conviction under it; and it seems to be essential that the record thereof, or at least of the indictment, should be set out in full. They must also aver the identity of the defendant with the person formerly acquit
Section 3520 of the Code, even if it can he considered as applicable to any part of the pleadings in criminal cases except the indictment, does not modify the rules just stated as to the essential constituents of these pleas. That section simply provides, that where a judgment is pleaded, it is not necessary to state the facts conferring jurisdiction on the court which rendered it; and makes the allegation, that the judgment * was duly rendered,’ a substitute for the statement of the jurisdictional facts. It does not dispense with the necessity of setting out the record of a former indictment in any case, where, at the common law, it was essential to do so. Tested by the rules here laid down, the 6th and 8th pleas were insufficient, and the demurrers to them were properly sustained.
6. The 2d plea of the defendant was open to the same objections on account of which we have just held the 6th and 8th defective. But, instead of demurring to it, the State interposed a replication in these words, “ Arrest of judgment.” If it had been shown that the indictment, under which the former conviction took place, was insufficient ; or that under it the defendant could not have been lawfully convicted of the offense charged in this one, the fact that the judgment in the former case had been arrested, though without the consent of the defendant, would have been no defense to this prosecution.—State v. Phil, 1 Stew. 31; 2 Leading Criminal Cases, 554. But the replication contains no such allegation. For aught that appears, the former conviction may have been upon an indictment which justified it, and the judgment may have been arrested without the prisoner’s consent. Under such circumstances, the arrest of judgment would
7. There is no substantial difference between the 1st plea, on which issue was taken, and the 5th plea. These pleas were both defective, for the reasons stated in considering the 6th and 8th. Even if the record did not authorize the presumption that the defendant had waived the 5th plea; yet, inasmuch as it was defective, and as he had the benefit of it under another plea substantially identical with it, we cannot hold that he has sustained any legal injury by reason of the failure of the court to require the State either to demur, reply, or take issue upon it.
8. The record shows that the defendant was not present in person when a day was set for the trial of the case, and when the court made the order for summoning the jury. Whether this would work a reversal of the judgment, is a question we need not decide. It is certainly the safer practice to have the defendant, in a capital case, in court whenever such an order is made.—See the authorities on this subject collected in 2 Leading Crim. Cases, 451, et seq. ; see, also, State v. Hughes, 2 Ala. Rep. 102; Hooker v. Commonwealth, 13 Grattan, 763; 1 Chitty’s Cr. L. 411, 414, 487.
The other questions presented by the record may not arise upon a future trial of the case. What we have said will be a sufficient guide for the court below in conducting further proceedings against the defendant.
The judgment is reversed, and the cause remanded. Let the prisoner remain in custody, until discharged by due course of law.
Section 3312 of the Code declares, that “ every slave who is guilty of murder, or of assault with intent to kill auy white person, or who is guilty of the voluntary manslaughter of a white person, or the involuntary manslaughter of a white person in the commis
It is manifest that each of the offenses enumerated in the section above copied, except the first, has been raised in magnitude by the statute. Assault with intent to kill was, at common law, only a misdemeanor; and manslaughter, though a felony, was much less heinous than murder. The ingredients which raise assaults with intent to kill, and manslaughters, to the rank of capital felonies, are, that the perpetrator shall be a slave, and the slain a white person. These ingredients, as I understand the rule, constitute these offenses statutory. They must be proceeded against under the statute, and a common-law form of indictment will not justify a trial and conviction under the statute. In fact, as I conceive, no conviction of a slave could be had, under an indictment found as at common law, for the offenses committed on white persons, manslaughter, or assault with intent to kill.—Nelson v. The State, 6 Ala. 394; Flanagan v. The State, 5 Ala. 477; Williams v. The State, 15 Ala. 259; Ham v. The State, 17 Ala. 188; Murray v. The State, 18 Ala. 727; Turnipseed v. The State, 6 Ala. 664; Eubanks v. The State, 17 Ala. 181; Beasley v. The State, 18 Ala. 535.
Section 3506 of the Code provides, that “when the offenses are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative.” The offenses Gf murder, and of assault with intent to kill, and manslaughter, either voluntary or involuntary, when committed by a slave on a white person, are of the same character, and subject to the same punishment. These several offenses may, then, be charged in the alternative in one and the same count. No one, I apprehend, would controvert this proposition. If these offenses, when committed by a slave on a white person, are statutory offenses, are of the same character, and subject to the same punishment, I cannot well conceive how the first of the offenses includes each of the others.
Another difficulty: Section 3312, so far as it declares the punishment of murder when committed by a slave,
The construction of my brothers will, according to my apprehension, lead to most embarrassing results. Under their view, as I understand it, we will be forced to hold, that murder, when imputed to a slave, is a propositus, with two distinct and dissimilar lines of descent; the one embracing two capital felonies, while the other includes all the grades of offense less than murder, from manslaughter down to the insignificant misdemeanor of an assault and battery, by one slave upon another.
I have felt it my duly to say this much in defense .of the decision in the case of Bob v. The State, 29 Ala. 20. Both that case and this, so far as this question is concerned, probably do no more than settle a rule of practice. It is not very important, in what manner the rule is declared. Settled either way, it can be conformed to without inconvenience to the profession, or detriment to public justice.