White v. State , 103 Ala. 72 ( 1893 )

HEAD, J.

At the fall term, 1889, of the Escambia circuit court, the appellant was indicted by the grand jury for the offense of grand larceny. The indictment was pending in the court at the following term, to-wit, the spring term, 1890. At the spring term, 1891, an indictment was found and presented against him for bribery, or offer to bribe, substantially the same as the present indictment, except as to a date. By reason of a variance between the allegations and the proof, in respect of this date, the indictment was quashed at the fall term 1893, and the present one found and presented in its place. There was no error in permitting the State to prove these facts, touching these two indictments for bribery. It was essential to prove the presentment of the first, and that it had been quashed, to obviate the defense of the statute of limitations of three years, on the trial of the last.

The solicitor introduced in evidence the indictment, above referred to, for grand larceny, together with the, docket of the cause, and entries thereon, showing the cause was pending at the spring term, 1890. This was, of course, for the purpose of proving the averment of the present indictment, that the alleged offer to bribe had relation to a cause or matter which was pending in said court, wherein this defendant was defendant and the State of Alabama was plaintiff, and defendant was charged with grand larceny. It is objected that the proof offered did not show that it was the same charge or matter referred to in the present indictment. It showed an indictment for grand larceny pending in the court, at the time of the alleged offer to bribe, and it was for the jury to say whether it was the same charge or matter referred to in the present indictment. We see no good reason why the docket and entries thereon, kept by the clerk of the court, showing that the grand larceny indictment, found at the fall term 1889, was on the docket for trial at the spring term 1890, should not have been admitted. The keeping of such a docket and making of the entries thereon, are official acts of the clerk, done under express statutory requirement. The evidence in question showed that the case was docketed and set down for trial at that term — a fact certainly material for the State to prove.

The defendant introduced evidence tending to show that at the time of the alleged offer to bribe, he was so intoxicated with strong drink that he did not know what he was doing. The State, in rebuttal, asked its witness, Singleton, the person alleged to have been bribed, or attempted to be bribed, “Did White, at the time of his conversation with you, talk with his usual intelligence?” which the witness answered, “Yes, sir, I think so.” He further stated that such was his recollection. It was objected that this evidence was the mere opinion of the witness and not admissible against the defendant. We do not think so. It was shown that the witness had known defendant intimately and well for fifteen or eighteen years. The fact, if true, that at the time of the alleged commission of the offense the defendant talked with his usual intelligence was material to be established as tending to show that defendant was capable of knowing what he ivas doing; and- of entertaining the corrupt intent essential to bribery. It could be proved in no other way than that adopted. It was impossible for the witness to reproduce the manner, tone of voice, the exact words used, and other conditions which would reflect the usual intelligence of the defendant ; hence it was competent for one .who heard and saw these conditions, to state as a collective fact that the defendant talked with his usual intelligence. — Lawson on Exp. & Op. Ev., 473.

The defendant testified as a witness in his own behalf that he was under the influence of whiskey during the entire week, in which Singleton testified the offer to bribe was made (which was the first week of the spring term of 1890 of the circuit court), and had no knowledge of any conversation whatever with Singleton, and no knowledge of having ever offered to bribe him ; that if he had the conversation, as testified to by Singleton, he was drunk at the time, and did not know what he was doing. In this connection, the defendant introduced H. H. Matthis, and offered to prove by him that he was attorney for defendant in three cases pending against him, and that he frequently saw defendant during said week, in the town of Brewton, and that he was drunk and so under the influence of whiskey as not to know what he was doing. The defendant also introduced his brother, Frank White, and offered to prove by him that he, the defendant, was under the influence of liquor and drunk said entire week, and drunk during the timo that Peter Singleton alleged he had a conversation with defendant, and so drunk as not to know what he was doing. The court refused to admit the proposed evidence. It is clearly settled by tho decisions of this court that when the offense charged consists of an act committed with a particular intent — when a specific intent is of the essence of the crime — drunkenness, as affecting tho mental state and condition of the accused — becomes a proper subject to be considered by the jury in deciding the question of intent. — Chatham v. State, 92 Ala. 47 ; King v. State, 90 Ala. 612 ; Armor v. State, 63 Ala. 173. These cases define the extent and effect of intoxication necessary to avail the defendant as an excuse for the act done. In view of this principle the evidence offered would have been admissible had it not taken a step too far. It proposed to show, as a fact, a conclusion which it was competent for the jury only to draw, namely, that defendant was so drunk he did not know what he was doing. The character and extent of the drunkenness, the conduct and demeanor of the defendant, and an.y other fact tending to show he did not know what he was. doing should have been shown, and the question whether he knew what he was doing or not left to the jury. The testimony proposed to be shown by the witness, Matthis, does not relate directly to the time the offense is said to have been committed, but we think the fact, if it be a fact,, that the defendant was seen frequently during the week of the offense, and was drunk each time, would have, tended to corroborate the testimony of the defendant that he was drunk during the whole week, covering the time of the act charged. Hence, if his testimony, as offered, had not been objectionable on the grounds above pointed out, it would have been admissible.

Essential to the offense charged, the offer, promise or gift must have been corruptly made by the defendant, with the intent to bias the mind or influence the decision of the juror in the case or matter pending in the court, and specified in the indictment. If, as is said in Chatham v. State, supra, the defendant was so intoxicated as that he was incapable of consciousness that he was committing a crime; incapable of discriminating between right and wrong, then he could not have entertained the corrupt intent essential to the completion of the offense. Under the evidence, touching the defendant’s drunkenness, it was properly a question for the jury whether he actually entertained the necessary corrupt intent. The two charges, 1 and 8, by which he attempted to have the jury instructed on this point, are subject to criticism. The first should have read, “that defendant was so drunk or intoxicated that he was incapable,” &c.; and not as written, “that defendant Avas drunk, or so intoxicated that he was incapable,” &c. The defendant may have been drunk, and yet capable of committing the offense. The drunkenness, to excuse, must have been of the character and extent we have above indicated. The third charge was capable of misleading the jury.

The indictment charges that the alleged act of the defendant was done with the intent to bias the mind or influence the decision of the juror, in relation to a cause or matter which was pending in said court, wherein Will White was the defendant and the State of Alabama was plaintiff, and said White was charged with grand larceny. To secure a conviction, it was necessary for the State to prove this averment. The proof shows that at the time of the alleged offer to bribe, there were three indictments pending against Will White, in said court; one for grand larceny, and the others for marking or altering the marks of hogs; and Singleton was a witness for the State, a'nd had been subpoenaed, as such, in each of these cases. It was incumbent on the State to satisfy the jury, beyond a x’easonable doubt, that the alleged offer or promise of the defendant, if made, was with the intent to bias the mind or influence the decision of the juror in relation to the case of grand larceny. Charges 2, 4 and 7 requested by the defendant ought to have been given. Charges 5, 6, 8, 9 and 11 are defective. They ignore that provision of the statute which authorizes conviction if the offer or promise was made with intent to bias the mind of the juror. The statute employs the alternative, ;‘to bias the mind or influence the decision of the juror,” and they cannot, properly, be taken to mean the same thing.

Charge 10 asserts a truism, and ought to have been given.

For the errors mentioned the judgment is reversed and cause remanded. Let the prisoner remain in custody until discharged by due course of law.

Reversed and remanded.