142 So. 442 | Ala. | 1932
The defendant was indicted and tried for murder in the first degree, but was acquitted of murder in the first degree and convicted of murder in the second degree. The only theory upon which a conviction was sought was under the fourth division of section 4454 of the Code of 1923, defining murder in the first degree and dealing with homicides: "Perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree." This is a statutory offense, that is, in being made a capital felony. Mitchell v. State,
The defendant was due the general charge as requested as to murder in the second degree. It may be that the Court of Appeals has not so specifically dealt with this charge as to authorize a review under the rule, but it does deal with the motion for a new trial, and, according to the facts as disclosed in the opinion, the Court of Appeals erred in holding that the trial court did not err in refusing the motion for a new trial.
I therefore think that the writ of certiorari should be awarded, and the judgment of the Court of Appeals should be reversed, and Justices BROWN and KNIGHT concur, but a majority of the court, composed of GARDNER, BOULDIN, THOMAS, and FOSTER, JJ., hold that the opinion of the Court of Appeals is sound and the writ should be denied.
Writ denied.