Watkins v. State , 133 Ala. 88 ( 1901 )

HARALSON, J.

The Code, section 4875, provides, that “When the jury finds the defendant guilty under an indictment for murder, they must ascertain, by their verdict, whether it is murder in the first or second degree,” etc. This is for the reason, that the statute, for the purpose of adjusting the punishment, makes murders at common law of a certain class, murders in the first degree, and all others, murders in the second degree, affixing the penalty of those in the first degree, at death or imprisonment for life in the penitentiary, at the discretion of the jury, and for those falling within the second degree, at not less than ten years, at the discretion of the jury. So, it has been properly held, that a general verdict of guilty under an indictment 'for murder, which does not ascertain its degree, will not sustain a judgment of conviction. — Story v. State, 71 Ala. 329. But, the statute makes no such requirement, as to manslaughter. It divides that offense into manslaughter in the first and second degree, punishing ¡the first by imprisonment in the penitentiary for not less than one nor more than ten years, and the second, at imprisonment in the county jail, or to hard labor for the county for not more than one year, and may also- be fined not more than $500; the imprisonment in each instance to be fixed by the jury.- — -Code, §§ 4860, 4862. The jury found the defendant “guilty of manslaughter” and fixed “the punishment at five years in the penitentiary.” This verdict was sufficient to show that the jury found the defendant guilty of manslaughter in the first degree. It has no application to manslaughter in the second degree. — Davis v. State, 52 Ala. 357; Anderson v. State, 65 Ala. 553; Wright v. State, 79 Ala. 262; Sampson v. State, 107 Ala. 76.

2. There was no merit in the motion to quash the venire, because one of the persons whose name appears thereon was dead at the time the venire was drawn. There was no evidence that this fact was known to the court at the time of the drawing, or of any fraud by which the name was put on the list. — Gibson v. State, 89 Ala. 121; Walker v. State, 91 Ala. 76; Mobile Jury Law, Acts 1894-95, p. 481, § 2.

3. Under the evidence, we cannot hold that the court below was in error, in holding that the evidence adduced was not sufficient to allow secondary evidence of the absent witness, Kemp, on, the ground that no proper predicate had been laid to show that the witness was permanently absent from the State, or for an indefinite period. — Thompson v. State, 106 Ala. 67; McMunn v. State, 113 Ala. 86; Dennis v. State, 118 Ala. 72.

4. 'The first charge does not hypothesize freedom from fault in bringing on difficulty. The expression “reasonably without fault,” in doing so, is not sufficient.

The second is erroneous in not submitting to, but withholding from, the jury the right to determine whether the facts hypothesized were sufficient to show imminent peril to life or limb. — Gilmore v. State, 126 Ala. 22.

The third and fourth ignore freedom from fault in ■bringing on difficulty.

The fifth, is duplicated in given charges 18 and 20. The sixth is argumentative, and lays stress upon a single fact, as do the seventh and tenth, which also predicate reasonable doubt upon good character alone.

The eighth has more than once been condemned by us. — Rogers v. State, 117 Ala. 9; Amos v. State, 123 Ala. 54.

The ninth is duplicated in given charges 14, 15 and 17, and the 11th, 12th and 13th were correctly refused as invasive of the province of the jury.

No error appearing, the judgment below is affirmed.