Thomas v. State

43 So. 371, 150 Ala. 31, 1907 Ala. LEXIS 355

• Court: Supreme Court of Alabama
• Decided: March 2, 1907
• Status: Published

Opinion

DENSON, J.

The defendant' was indicted, tried and convicted of murder in the first degree; the subject of the homicide being his wife.

Unless the opinion of a venireman is of that fixed and definite' character as will bias his verdict, a challenge for cause on account of fixed opinion will not lie. Under the rule in this respect, as declared in the cases of Long v. State, 86 Ala. 32, 54 South. 443, and Jarris v. State, 138 Ala. 17, 34 South. 1025, the venireman Gayle Owen was not- subject to challenge for cause.—Williams’ Case, 3 Stew. 454; Morea’s Case, 2 Ala. 275; Frazier v. State, 23 Ohio St. 551; Smith v. Com., 7 Grant. (Va.) 593; People v. Cochran, 61 Cal. 548; Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614, 30 L. Ed. 708.

■ ■ “If-a husband finds his wife committing adultery and under the provocation instantly takes her life, the homicide is onlv manslaughter..”—Hooks’ Case, 99 Ala. 166, 13 South. 767; McNeill’s Case, 102 Ala. 121, 15 South. 352, 48 Am. St. Rep. 17; Dabney’s Case, 113 Ala. 38, 21 South. 211, 59 Am. St. Rep. 92; Williams’ Case, 130 Ala. 107, 112, 30 South. 484. There is nothing in the evidence as' disclosed by the record which tends to slunk such a provocation; nor is there anything disclosed which tends in the slightest to show self-defense. Therefore the evidence sought to be elicited from the witness Logan was properly disallowed.—Angling’s Case, 137 Ala. 17, 34 South. 846; Gafford’s Case, 122 Ala. 54, 25 South. 10.

That the defendant was angry and in a passion before be demanded his child of the deceased was a competent and relevant fact, which might well have been offered in- evidence by the state, but could not have been properly considered in extenuation of the offense with which defendant was charged. Therefore the court committed no error prejudicial to the defendant in declining to allow proof to be made of such fact by the defendant.—Angling’s Case, supra.

The defendant was examined in his own behalf, and his evidence in some degree tended to show that- the killing was accidental. On cross-examination he was asked by the solicitor this question, “So you killed your wife accidentally, Andrew?” The court overruled an objection to the question made by the defendant. In this ruling we find no eiror.—Williams’ Case, 123 Ala. 39, 26 South. 521; Hurst’s Case, 133 Ala. 96, 31 South. 933; Eatman’s Case, 139 Ala. 67, 36 South. 16.

On cross-examination the defendant testified that he did not tell Mrs. Wheeler that he was going to kill his wife. It was competent in the rebuttal, and as original evidence, for the state to prove by Mrs. Wheeler that defendant said he was going to kill his wife. This evidence shows a threat to take the life of the wife (deceased)-, and therefore tends to show malice or hostility on the part of the defendant towards the deceased. Nor was it necessary to lay a predicate for the introduction of such evidence.—1 Mayfield’s Dig. p. 837; Smith’s Case, 137 Ala. 22, 34 South. 396.

On the state’s evidence, if worthy of belief by the jury beyond a reasonable doubt, the defendant is guilty of murder; and after careful consideration of the evidence offered by the defense we have failed to find anything upon which to rest the doctrine of self-defense.—Dabney’s Case, 113 Ala. 38, 21 South. 211, 59 Am. St. Rep. 92; Reese’s Case, 135 Ala. 13, 33 South. 672; Davis’s Case, 92 Ala. 20, 9 South. 616; Williams’ Case, 130 Ala. 107, 112, 30 South. 484. Indeed, the only claim made by the defendant on the trial, so far as the evidence discloses, was that the killing was the result of an acci■dent; and in this state of the case, if the court had said nothing in the oral charge,to the jury in respect to the law of manslaughter in tire first degree, the defendant would have no ground for complaint or upon which to base an exception.—Dennis’ Case, 112 Ala. 64, 20 South. 925; Gafford’s Case, 125 Ala. 1, 10, 28 South. 406.

But the court, in respect to the law of manslaughter, said in the oral charge to the jury “I will not charge you upon the law of manslaughter in the first degree, for the reason that there is no evidence applicable to manslaughter in this case. There was no assault in this case; and, if the killing took place on account of words, it would not be reduced to manslaughter. , Upon the other phase of the case, if the killing was accidental, there is no evidence to show that there was such gross negligence as to make it manslaughter in the second degree. In such a case, where a man does an act in such a negligent manner as to make it willfulness, he may be convicted of manslaughter in the second degree.” The defendant reserved two exceptions to the charge, in the following language:

First. “The defendant thereupon duly excepted to that part of the above oral portion of the general charge of the court wherein the court stated that there was no evidence of such gross negligence as to make the homicide one of manslaughter in the second degree.” The defendant insists here that the charge excepted to violates section 8326 of the Code of 1896, which is in the following language: “The court may state to the jury the law of the case, and may also state the evidence when the same is disputed, but shall not charge upon the effect of the testimony without being required to do so hv either of the parties.” If it may be properly said of the charge that it was upon the effect of the evidence, then the insistence of the defendant should be sustained. In the case of Dennis v. State, 112 Ala. 67, 20 South. 926, the court said: “Because of the difficulty which sometimes arises to distinguish between the more aggravated cases of manslaughter in the first degree and the mildest, type of murder in the second degree, it has been declared that it is much the safer rule to charge upon all the degrees of homicide included in the indictment when the party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.” This is- sufficient authority to warrant the trial judge in remaining silent on the subject of manslaughter, or even to justify him in refusing char•ges in respect to that degree of homicide, when his mind is clear that there is no- evidence tending to bring the offense within that degree of homicide. But we have no case that we can now recall which holds pointedly that the court may charge ex mero motu that there is no evidence in the case to require the court to charge on the law of manslaughter. Nevertheless, we have a case which holds unequivocally that the court may make a statement of a fact to the jury which is clearly and fully shown by the evidence without dispute (Miller's Case, 107 Ala. 40, 57, 19 South. 37); and we do not question, the soundness of that case. This being true, when it is clear to the judicial mind that there is no semblance of evidence tending to reduce the offense, if one was committed, to manslaughter in the first degree, and when the defendant in his own evidence only claims that the killing was accidental, we are constrained to hold that the court in the instant case did not violate the section of the Code referred to in saying to the jury in the oral charge that there Avas no evidence applicable to manslaughter in the first degree in the case.. This is not a statement as to the effect of the evidence, but a determination that there is no evidence. It is always the province and duty of the court to determine whether there is any evidence of a given fact or proposition, and it is the province of the jury to determine the effect of the evidence; and Avhile, in a case Avhere there is no evidence of a particular fact, the court is not bound to give a written instruction to the effect that there is no evidence of such fact, yet it may do so without committing error.—Peck v. Ryan, 110 Ala. 336, headnote 3, 17 South. 733. It follows that the first exception to the oral charge cannot avail appellant anything.

It is by virtue of section 4857 of the Code of 1896 that the court must, in every case where the defendant is on trial for the highest degiee of homicide, charge on murder in ■ the first and second degree.—Gafford's Case, 125 Ala. 1, 10, 28 South. 406. It cannot- be said that there is no evidence tending to show that the killing was accidental, although that tendency is to be found only in the defendant’s testimony.. The bill of exceptions sIioavs affirmatively that what Ave have quoted is all that the court said in the general charge to the jury on the subject of manslaughter, in either degree. According to our construction of that part of the charge Avhich relates to manslaughter in the- second degree there is nothing of Avhich the appellant has a right- to complain. There is nothing in the bill of exceptions to show-that the court did not by appropriate instruction present- to the jury the law applicable to the defense of accidental killing, or that such instructions ay ere not satisfactory to the defendant. As tln-re is no exception raising tile question, we pi mime that that- defense was fully and properly covered by the court’s general charge. The meaning of the charge excepted to is that, if the jury should find that the lulling Avas accidental, an acquittal should folloAAr, ''irrespective of any negligence on the part of the defendant in the handling of the pistol less than gross negligence; and Avhile the additional Avor-ds of the couit, that “there is no evidence to shoAV that there was such gross negligence as to make it manslaughter in the second degree,” may constitute a charge on the effect of the evidence, yet in the connection those words were used it is quite apparent that the charge was favorable to the defendant. Likewise it may be said, in respect to the last sentence in the charge, if there is error in it, it is not error prejudicial to the defendant.—Fitzgerald’s Case, 112 Ala. 34, 20 South. 966; Austin’s Case, 145 Ala. 37, 40 South. 989, 3 L. R. A. (N. S.) 822.

We come now to consider the charges refused by the court to the defendant. Charge 5, besides being argumentative, is abstract; there being nothing in the record to show that the mother of defendant refused to testify,- or that she Avas called to testify in the case. The case of Brock v. State, 123 Ala. 24, 26 South. 329, is not authority for placing the court in error for refusing the charge. In that case the court alloAved the solicitor to refer to the fact, and comment on it, that defendant, who was being tried for adultery,- failed to put her alleged paramour who was in the courtroom during the trial, on the stand as a Avitne-ss. This court held the trial court committed error. In this the court emphasizes the rule that reference to such matter is improper; and, if improper in an argument, why not in a charge? It would have been error if the court had charged that-the jury might consider such fact. It- follows that it Avas not error- to refuse a charge cautioning the jury not to consider it. In short, the matter was outside of the case.

Charges 4 and 7 are mere arguments. Besides, they invade the province of the jury. Charges 14, 18, 17, and 16 are wholly Avithout merit, and in the light of the evidence in the case are entitled to no consideration, and might properly be termed “speculative charges.”

Charges 1, 6, and 3, it is apparent, were intended to refute or offset the argument of the solicitor, and for this, if for no other reason were properly refused.—White’s Case, 133 Ala. 123, 32 South. 139; Mitchell’s Case, 129 Ala. 39, 30 South. 348; Brown’s Case, 121 Ala. 9, 25 South. 744; Hawes’ Case, 88 Ala. 37, 7 South. 302; Tribble’s Case, 145 Ala. 23, 40 South. 938.

Charges 15 and 30 invade the province of the jury.

Charge 13, besides being invasive of the jury’s province, is a misconception of the scope of evidence of threats by a defendant against the deceased. Such evidence may be considered in determining whether there was hostility, malice, or ill will by the defendant towards the deceased.

Charge 12, while attempting to assert the doctrine of specific intent at the time of the killing in order to constitute murder in the first degree, yet, from the futile effort ou the part of the defendant, as shown by the bill of exceptions, to present to -the jury irrelevant and incompetent testimony, it is apparent that the “something,” whatever that might be, referred to in the charge, Avas something outside of the evidence that had been per" mitted to go before the jury. At least, the charge is calculated to mislead the jury to the belief that they might look to matteis outside of the evidence for that “something.” The charge was properly refused.

Only reasonable doubts are required to be construed in favor of the defendant. Charges 11 and 10 are erroneous statements of the laAv; ánd by them the jury might have been misled to the belief that a doubt of defendant’s gufilt required an acquittal. They weire properly refused.

Charges 8 and 9 Avere properly refused. The tendency of such charges, if given, Avould be to mislead the jury to the conclusion that, if they had a. reasonable doubt groAving out of any part of the evidence, they should giAre the defendant the benefit of it, even though such doubt Avere dissipated by other evidence, or did not exist upon a consideration of the whole evidence.—Nicholson’s Case, 117 Ala. 32, 23 South. 792; Hale’s Case, 122 Ala. 85, 26 South. 236 (charge 4); Lodge’s Case, 112 Ala. 107, 26 South. 200; Liner’s Case, 124 Ala. 1, 27 South. 438; Gordon’s Case, 129 Ala. 113, 30 South. 30; Smith’s Case, vcg Ala. 22, 34 South, 396;Stewart’s Case, 137 Ala. 33, 34 South. 818 (charge 1); Winter’s Case, 132 Ala. 32, 31 South. 717. Moreover, these charges axe covered by given charge 23.

Charge 2 is argumentative.—Hussey’s Case, 86 Ala. 34, 5 South. 484. Besides, the charge is abstract; there being no evidence in the case to the effect that the deceased had engaged in sextual intercourse with other men. than the defendant.

This brings us to the insistence that seems to be most a elied on by appellant’s counsel for a reversal. At least, far the greater' part of their brief is devoted to it. After the evidence in the case was closed, the solicitor had made his opening argument for the state, and while the concluding argument was being made for the defendant by his counsel the presiding judge left the bench without calling any one to preside during his. absence in his stead, and, without ordering’ a suspension of the trial, walked into his private chamber on the same floor the courtroom was on, and located 58 -feet from where defendant’s counsel was standing while addressing the jury, walked to a book rack in his private chamber, secured a book, and returned to the bench. The door of the judge’s chamber ordinarily is in full view of the point where the defendant’s counsel was standing and the jury box; but on this particular occasion the courtroom was crowded with people standing, and the counsel and jury were not visible from the door of the chamber. The book rack was located inside of the chamber, ten feet from the door, and at that point the judge could not hear what was being .said by defendant’s counsel in his argument. The consent of counsel for defendant was not obtained by the judge for him to leave the bench. But it does not appear that any objection was made by counsel, no.r was any point made in respect to the matter by the counsel at any time, nor was any ruling by the presiding judge invoked by counsel, nor was there an exception reserved to the action of the judge by the defendant or his counsel. Neither does it appear that defendant’s counsel was interrupted in his argument during the absence of the judge from the bench, or that any question arose to be determined by the judge. It does not appear how long the judge was gone from the bench, and we must presume he went immediately from the bench, secured the book, and immediately returned; and we must further presume that defendant and his counsel were aware of the fact that the judge left the bench, where he went, and the length of time he was gone, and when he returned. We may and do subscribe to the doctrine that it is the duty of the presiding judge, especially in criminal trials, and more especially where life is involved, to be visibly present every moment of their actual progress, so that he can always see and hear all that is being done, yet at the same time not be required under this doctrine to reverse the instant case. It is a proposition, recognized by all the courts, “that questions not presented in the trial court in some appropriate manner will not be considered on appeal or error. It is a rule of nearly universal application that objections must be made in the trial court in order to reserve 'questions for review.”—2 Cyc. 677; Birmingham Loan Co. v. Anniston First National Bank, 100 Ala. 249, 13 South. 945, 46 Am. St. Rep. 45; Freeman v. Swan, 22 Ala. 106; Smith v. Dick, 95 Ala. 311, 10 South. 845. See the numerous authorities cited, in note 32, 2 Cyc.677. N> objection was made in the trial court, no ruling of the court on the point was invoked, nor was an exception reserved. So far as the record shows, the presiding judge’s attention was not directed to the impropriety until the bill of exceptions was presented. It is not a matter that goes to the jurisdiction of the court, and, if it were, it does not appear on the record proper, and under the authorities we might well dismiss the question as not being before ns for review. Again, the defendant was aware of the absence of the judge, and so was his counsel, but raised no objection. The judge returned; and the trial proceeded to conviction, judgment, and sentence without any question being raised. The defendant knew as well when the judge left the bench and at the time he returned as he ciid when he presented in his bilí of exceptions the point of law that he now urges, as a ground for a reversal, and yet he said nothing about the point when the judge returned, but chose rather to remain silent and take the chances of getting a favorable verdict from the jury; and. so of his own fault is his point in non-reviewable shape.

But, if it should be conceded that it is the duty of the court to consider the question on the record as presented, we are of the opinion that the mere absence of the judge during the progress of the trial, when no objection or point was made at the trial, the absence being only for a few moments — long enough for the judge to walk 68 feet, get a needed book from his chamber adjoining the courtroom, and return to the bench — does not require or authorize a reversal of the judgment of conviction. Especially so when it does not appear that the defendant suffered any harm or detriment on account of the judge’s temporary absence. We shall not attempt- to differentiate the many cases on the subject, but cite some that are in accord with the ruling here made. We conclude, however, with the admonition that it is the safer practice for the presiding judge to suspend the progress of the trial when it is necessary for him to be absent even for a short time and for a necessary pulpóse. — O’Shields v. State, 81 Ga. 301, 6 S. E. 426; Pritchett v. State, 92 Ga. 65, 18 S. E. 536; Horne v. Rogers, 110 Ga. 362, 35 S. E. 715, 49 L. R. A. 176; State v. Smith, 49 Conn. 378; State v. Beuerman, 53 Pac. 874, 59 Kan. 586; Turbeville’s Case, 56 Miss. 793; Tuttle v. People, 36 N. Y. 431; State v. Carnagy, 106 Iowa, 483, 76 N. W. 805.

After careful consideration of the record, we have discovered no 'reversible error, and the judgment of conviction and sentence will be affirmed.

Affirmed.

Tyson,. C. J., and Haralson and Simpson, JJ., concur.