Wilson v. State

128 Ala. 17 | Ala. | 1900

SHARPE, J.

By an indictment naming him as Robert Wilson alias Duncan, defendant is charged with the murder of Clarissa, alias Clara King, alias Cain. Evidence for the State tended to show that defendant with the declared purpose of killing the deceased hunted her, and shot and killed her while she was hiding from him in a bed. In behalf of the defendant there was evidence tending to show that deceased had made threats against his life, which were communicated to him, that he did not hunt the deceased, but shot her in consequence of an attack she was making on him with a razor, from which he had no other available way to escape.. '

The defendant moved to continue the case, and objected to being placed on tidal on the ground that no true copy of the indictment preferred had been served on him, as required by law. It appears that the endorsement “A true bill” made by the foreman of the grand jury on the original indictment, was omitted from the writing served on the defendant, while in other respects the two papers correspond literally. . The statute provides that such indorsement must be made on an indictment when it is found. — Code, § 5039. When made it is the legal evidence of the finding and return of the grand jury. — Wesley v. State, 52 Ala. 182; Holley v. State, 75 Ala. 14; Mose v. State, 35 Ala. 421; Hubbard v. State, 72 Ala. 164. That the foreman’s indorsement is intended to furnish such evidence is the reason given for the opinion expressed in the case last cited that “it is the duty of the clerk to furnish for sendee on the accused an exact and literal copy of the indictment, with all its indorsements.” Though the correctness of that opinion be conceded and though it be further conceded that the intimation given in Mose v. State, supra, to effect that here, as at common law, the indorsement “billa vera” is essential to give life to an indictment, still in dealing with the motion in question a distinction must be recognized as between the indorsement and the indictment itself. Neither from the motion nor elsewhere does it appear that the trial court’s attention was directed to the omission of the indorsement except by the stated ground of the motion which was too general to put the trial court in error for overruling it. A variance between the original indictment and the copy served not properly objected to before trial is not ground for reversal. — Ezell v. Stale, 54 Ala. 165.

The offense is charged in the Code form which sufficiently covers murder in both and either of its degrees. Redd v. State, 68 Ala. 492; Ward v. State, 96 Ala. 100. It was permissible to name the defendant under an alias. — Lee v. State, 55 Ala. 259; Haley v. State, 63 Ala. 89. If the indictment lacks certainty concerning the identity of the person killed, or lacks averment excusing uncertainty in that respect as that person was not otherwise known to the grand jury, than >as therein named, such defects might Lave been available here if they had been made in the trial court. See Morningstar v. State, 52 Ala. 405; Bryant v. State, 36 Ala. 270. They were not made a ground of objection in either the demurrer, the motion to quash or the motion to arrest judgment, and, therefore, they will be regarded as waived.

There was no error in the rulings on evidence or in the refusal of charges.

The piece of dress pierced by shot, after being identified-as having been worn by tlie deceased just after she was killed, Avas proper to be looked to as illustrating the location and nature of the Avound if for no other purpose.

There is nothing in the objection made to evidence showing threats made by defendant against the deceased.

The question addressed to McCord about a conversation AAnith Clarissa King Avas properly disallowed, because it Avas too general to indicate the relevancy of the conversation called for.

. Apart from the obscurity invoked in charge A. as to AAdiat is meant by its references to doubting the truth of a link in a chain of evidence, the metaphor is inapt as applied to the present case, where the evidence connecting the defendant with the killing does not consist of a chain of circumstances, but is direct, positive, and undisputed.

To be in position to establish self-defense in homicide, the slayer must be free from fault in bringing on and engaging in the immediate difficulty- AV'hich results in the killing. Charges B. and G. both ignore this principle, and charge B. also ignores the duty of retreat which, when reasonably practicable, precedes the right to take the life of an assailant. — Gilmore v. State, 126 Ala. 59, and cases there cited.

The term “formed design” employed in charge E. has sometimes even by this court been deemed expressive of the willful, deliberate, premeditated purpose which characterizes murder in the first degree. — Mitchell v. State, 60 Ala. 26. In more recent oases it has been held that such meaning does not necessarily attach to the term. See Hornsby v. State, 94 Ala. 55; Martin v. State, 119 Ala. 1; Miller v. State, 107 Ala. 40. A term giving rise to views so divergent would probably have confused the jury and misled them to believe that premeditation was a necessary ingredient of murder in the second degree, whereas malice which may arise on the instant and without deliberation, when concurring with an intention to kill, may constitute that offense. Gilmore v. State, and Martin’s case, supra.

By the .omission of the word “if,” or its equivalent, from the last clause of charge “F.” what is apparently intended to state the hypothesis as to reasonable doubt, is converted into an improper assertion that “the jury have a reasonable doubt,” etc. Moreover, that clause seems to improperly confine the inquiry to manslaughter.

It was proper for the court to decline to receive the verdict until the jury had found and expressed by the veihlict the degree of the offense of which the defendant was found guilty, and the jury having remained together undischarged in the presence of the count after delivering the incomplete verdict, the court' but pei*fonned its duty in calling their attention to the omission and in returning them to the jury room for the purpose of further deliberation.

No reversible error appearing in the record, the judgment must be affirmed.