Roberson v. State

57 So. 829, 175 Ala. 15, 1912 Ala. LEXIS 144

• Court: Supreme Court of Alabama
• Decided: February 8, 1912
• Status: Published

Opinion

SAYRE, J.

Appellant Avas indicted for murder in the first degree. The jury returned a verdict in the folloAving form: “We, the jury, find the defendant guilty as charged in the indictment, and fix his punishment at imprisonment in the state’s penitentiary for life.” For many years the laAV has required of this court in the consideration of criminal appeals that it “must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the laAV demands.” — Code, § 6264. For many years, also, the statute of this state has required that, “Avhen the jury find the defendant guilty under an indictment for murder, they must ascertain, by their verdict, whether it is murder in the first or second degree.”— Code, § 7087. And the further provision is that, “if the defendant on arraignment confesses his guilt, the court must proceed to determine the degree of the crime, by the verdict of a jury, upon an examination of the testimony, and pass sentence accordingly.” — lb. The reason for this is found in the fact that the statute, for the purpose of adjusting the punishment, makes murders at the common law of a certain class, murders in the first degree, and all' others murders in the second degree, affixing different punishments to the different degrees. — Watkins v. State, 133 Ala. 88, 32 South. 627. And this court, in the observance of .these statutory requirements, has frequently and uniformly held that no judgment of conviction, under an indictment for murder, can be sustained, unless the verdict of the jury expressly finds the degree of the crime of Avhich the defendant is convicted. — Storey v. State, 71 Ala. 329, and cases there cited; Fuller v. State, 110 Ala. 655, 20 South. 1020. But where the conviction is of manslaughter the statute makes no such requirement. — Watkins v. State, supra. The trial court clearly and correctly stated this law to the jury in its charge, but must have overlooked it when receiving the verdict. Under the statute and the- decisions the judgment of conviction in this case is fatally defective and must he reversed.

It having become proper under the circumstances of the case to prove the character of the deceased for peace and quiet or for turbulence and violence, Kite Scott, a witness for the defendant, after he had testified that he had lived for a number of years in the same neighborhood with deceased, that he knew the character of the deceased, and that his character was that of a violent, turbulent man, when drinking, on cross-examination, in answer to the solicitor’s question, “Who did yon hear say that” : “I don’t know as any one ever said them very words. He was suffered to be. I called him that kind of a man. I didn’t know what they called him.” Further, he said that he was not basing his judgment on what people said. Thereupon, on motion of the solicitor, the court excluded all the witness had said relative to the character of deceased, and to this action of the court there ivas exception. The defendant was entitled to the benefit of the witness’ opinion as to the character of deceased. One may form a valuable opinion of the character of another without hearing any specific discussion or mention of that character. — Hadjo v. Gooden, 13 Ala. 718; Dave v. State, 22 Ala. 23. We learn a man’s general reputation and character from the bearing of his neighbors and acquaintances towards him. Their attitude unconsciously reflects their opinion, though nothing be said. To this, in forming a competent opinion as to character, a witness may add his own knowledge. In this case the opinion of the witness appears to have been based in part at least upon the estimate of the neighbors of deceased, and should have gone to the jury. There were, however, a number of witnesses who testified to the violent and turbulent character of the deceased, when drinking; indeed, that question was not contested in the evidence, and it may be that on the state of the record thus shown we would not consider the particular bit of evidence in question of such importance as that error in its rejection, standing-alone, would require a reversal.

The court erred in refusing charge C requested by defendant. This court has held that the charge ought to be given. — Simmons v. State, 158 Ala. 8, 48 South. 606; Walker v. State, 153 Ala. 31, 45 South. 640.

Charges 7 and F were properly refused because they omitted the postulate, necessary to an acquittal on the ground of self-defense, that the belief of imminent danger and necessity to kill must be honestly entertained by the defendant, as well as be reasonable. — Griffin v. State, 165 Ala. 29, 50 South. 962. “The law requires that such belief must be reasonable and honestly entertained.” — Jackson v. State, 78 Ala. 471, Gaston v. State, 161 Ala. 37, 49 South. 876, wherein it differs, is not to be followed. The charge of somewhat similar import, condemned in Watkins v. State, supra, was open to more than one objection. The court, having stated one sufficient objection, did not think it worth while to state others.

As to that part of the court’s oral charge which singled out for comment defendant’s interest in the result of the prosecution as affecting his credibility, see Tucker v. State, 167 Ala. 1, 52 South. 464.

This transcript of 67 pages is lettered throughout in red ink. It may be considered to have a certain element of barbaric beauty in it; but to the judicial eye it is distasteful and discomforting, if not positively harmful. We would suggest that the taste for bright color be not indulged in the preparation of transcripts to be studied in this court.

Reversed and remanded.

All the Justices concur.