Tempe v. State

Jan 15, 1867
Reporters:
Before:
Byrd
BYRD, J.

The counsel for appellant contends, that there was no law in force in this State authorizing the punishment of freedmen for offenses committed by them at thó time the offense charged was perpetrated. It does not appear from the indictment, or the bill of exceptions; *354when the offense was committed, whether before the prisoner was set free or afterwards; and as the bill of exceptions does not purport to set out the evidence introduced on the trial, we must make every legitimate intendment in favor of the rulings of the court below, and the judgment thereof. The indictment was found and filed at the March term of the circuit court for the year 1866. The indictment describes the appellant as “ a freedwoman but this does not necessarily imply that she committed the offense with which she is charged before or after she became free. But, in order to sustain the judgment of the court, we must presume, upon the state of this record, that she committed the offense prior to the finding of the indictment, and after she became free.

2. This court has held, that freedmen were criminally, responsible, under the laws applicable to other free persons of color; and such persons being liable to prosecution for the commission of the offenses mentioned in sections 3080 and 3081 of the Code, and to the punishment prescribed therein, we cannot give our assent to the position taken by appellant’s counsel. “We conceive that the case of Eliza (a freedwoman) v. The State, decided at January term, 1866, is decisive of this question. — 39 Ala. 693.

3. It is contended, also, that the act approved’ February 23, 1866, adopting the Penal Code, repealed the law punishing this offense, which was in force at the time it was committed; and therefore the appellant could not be convicted and sentenced under this indictment. But the saving clause of that act is a reply to the position taken by counsel.

4. It is insisted that the indictment is defective, for uncertainty in description, and for duplicity. The indictment is sufficiently certain, as to matter of description, under the provisions of the Code; and the objection of duplicity is not sustainable, as will appear by reference to the Code, and the cases of Mayo v. The State, 30 Ala. 32; Cawley v. The State, 37 Ala. 152, and Cheek v. The State, 38 Ala. 107, and authorities therein cited. We are of opinion that the words infant child, name to the grand jury unknown,” is a sufficient description in an indictment of *355a human being upon whom the offense of murder may be committed.

5-6. The explanatory charge given by the court could, upon a state of facts that might have existed, be vindicated; and as the facts in evidence on the trial are not set out in the record, we must presume that facts were in evidence which authorized the court to give that charge. If a mother should intentionally kill her infant child, who was incapable of any resistance, by beating it over the head with an instrument calculated to produce death, the law would imply malice; although it might not if a mother should intentionally kill her infant child, who was capable of taking her life, and was attempting to take it with means adequate to the end, if she did so under the necessity of preserving her own life. A party complaining of error must show it affirmatively; otherwise, the ruling of the court below must be affirmed. — Morris v. The State, 25 Ala. 57; Miller v. Jones, 29 Ala. 174; Eskridge v. The State, 25 Ala. 30; Butler v. The State, 22 Ala. 43; McElhaney v. State, 24 Ala. 71.

This disposes of all the material points raised in the argument of appellant’s counsel; and upon a careful examination of the record, we have been unable to detect any error, The judgment of the circuit court, therefore, must be affirmed, and the sentence of the court below carried into execution as prescribed by law.