Smith v. State , 8 Ala. App. 187 ( 1913 )

THOMAS, J.

— The defendant was indicted under the name J. Van Smith, and he pleaded in abatement that his correct name was Javan J. Smith.. The state demurred to the plea, which was sustained, on the ground, among others, that the name set up in the plea is idem sonans with that stated in the indictment.

In considering the plea we are to ignore the middle initial “J.” given therein, since the criminal law regards a middle name as entirely immaterial. — Rooks v. State, 83 Ala. 80, 3 South. 720; Pace v. State, 69 Ala. 231, 44 Am. Rep. 513; Kimbrell v. State, 130 Ala. 40, 30 South. 454. So the plea in abatement can be properly regarded as alleging that the defendant’s true name .is Javan Smith, whereas he was indicted as J. Van Smith. Clearly the two sound alike, but when we treat the letter J, in the indictment, as only an initial of another name, which it purports only to be (Diggs v. State, 49 Ala. 311; Gerrish v. State, 53 Ala. 477), we have as the only given name of the defendant stated in the indictment that of Van Smith, which is not idem sonans with that of Javan Smith given in the plea. The doctrine of idem sonans applies only to names that are spelled differently, but are pronounced alike, and was adopted for the reason that orthography provides no rule or standard for the correct spelling of proper names.. A person may spell his name as he pleases, and violate no rule of English; other persons may likewise spell it differently, and so long as it sounds the same the law will treat it as the same. — 21 Am. & Eng. Ency. Law, p. 313 et seq.; Rooks v. State, 83 Ala. 80, 3 South. 720.

We find, however, nowhere such a statment or application of the doctrine of idem sonans as would warrant its extension to a case like this, and the reasons underlying the rule would forbid. If Javan Smith can be properly indicted as J. Van Smith, then Enrah Jones could be properly tried under an indictment against U. It. Jones, although the letters U. B. may he the real given name of another Jones actually intended to be indicted, or the initials of Uriah Bhodes Jones. The latter two instances are not cases of a different spelling of the same name, but á. case of different names; and we are of opinion that the doctrine of idem sonans is not applicable to either instance. — Gerrish v. State, 53 Ala. 477.

At common law a person may he connected with a felony either as a principal in the first degree, as a principal in the second degree, or aider or abetter, as an accessory before the fact, or as an accessory after the fact. A principal in the first degree is he that is the actor or absolute perpetrator of the crime. A principal in the second degree is one who, at the time of the commission of the felony, is present, either actually or constructively — that is, either on the spot or near enough to render assistance to the main design should the need arise— and aids or abets in its commission in any way that these words are defined in Raiford v. State, 59 Ala. 106; Amos v. State, 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 682; State v. Tally, 102 Ala. 63, 15 South. 722. An “accessory” is one who is not the chief actor in the felonious offense, nor present at its perpetration, but is in some way concerned therein either before or after the act is committed. If one be absent at the time a felony is committed, yet procures, counsels, or commands another to commit it, he is an accessory before the fact. — Griffith v. State, 90 Ala. 583, 8 South. 812. If, knowing a felony to have been committed, he receives, relieves, comforts, or assists the felon, he is an accessory after the fact. — 8 Am. & Eng. Ency. Law, p. 292; 1 Am. & Eng. Ency. Law. p. 260.

This distinction and difference between the several of-fénders was drawn at common law and applicable only in cases of felony. In misdemeanors every person so connected with the offense was treated as a principal and could be indicted and tried as such — except that a participation in the misdemeanor after the fact was hardly noticed by the law. — 1 Am. & Eng. Ency. Law, p. 261, note 1. Section 62.19 of the Code of Alabama abolishes the distinction existing at common law between the several prime offenders in cases of felony, and makes every person criminally connected with the act a principal, as in misdemeanors, except accessories after the fact. It declares: “The distinction between an accessory before the fact and a principal, and between principals in the first and second degrees in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter he in-dieted, tried, and punished as principals, as in the case of misdemeanors.” Accessories after the fact are dealt with in section 6220.

The defendant, J. Van Smith, and his son, Bud Smith, were in pursuance of the statute separately indicted and tried as principals for an assault with intent to murder John Perry, Mrs. E. F. Perry, Henry Wilkes, and Ernest Me Gar ley — all of them in one count and each of them in separate counts. Bud Smith was first tried and convicted, and it is contended by the state, which is admitted by defendant, that Bud Smith is the person who actually fired the gun in the alleged assault. In order, therefore, to convict the defendant for the act of Bud Smith, whether it amounted to only an assault and battery or the graver offense of an assault with the intent to murder, it must be established that the defendant was connected with the offense to such an extent as would make him either what was known at common law as a principal in the second degree or an accessory before the fact, each of which terms has been hereinbe-fore defined.

It was therefore competent for the state to offer evidence tending to show either or both, and if the jury believed either beyond a reasonable doubt — either that he was present, actually or constructively, at the time Bud Smith fired the gun, and aided or abetted him in the doing of the act (Raiford v. State, 59 Ala. 106; Amos v. State, 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 682; State v. Tally, 102 Ala. 63, 15 South. 722), or, if absent at the time, that he beforehand had procured or counseled or conspired with Bud Smith to do the act (Griffith v. State, 90 Ala. 583, 8 South. 812; Hughes v. State, 75 Ala. 31) — they would be justified in convicting him, of an assault with the intent to murder, if the jury further believed beyond a reasonable doubt that there was such an intent (McCormack v. State, 102 Ala. 156, 15 South. 438; Meredith v. State, 60 Ala. 441), and, if hot, of an assault and battery, since there is no question but what Bud Smith was guilty of at least the latter.

A “conspiracy” in general is defined to be “the confederating together of two or more persons to accomplish some unlaAvful purpose, or a lawful purpose by unlawful means.” — 2 Bish. New Crim. Law, §§ 171, 175; 6 Am. & Eng. Ency. Law, p. 832; 1 Mayf. Dig. p. 214. Sections 6470 and 6471 of the Code, respectively, fix the punishment for criminal conspiracies to commit felonies and misdemeanors. A criminal conspiracy is a distinct, substantive offense, complete when the corrupt agreement is entered into. Such agreement is the very gist of the offense, and it is not necessary to a conviction for a. conspiracy alone that any act should be done in pursuance of it. — Thompson v. State, 106 Ala. 76, 17 South. 512. When an act, however, has been committed by one of the conspirators in furtherance of the common design, if the act amounts only to a misdemeanor, then all of the conspirators may be indicted and tried either for the conspiracy to commit the act or for the act itself; but, when the act done in such furtherance amounts to a felony, then the lesser offense of the conspiracy to do the act is merged into the higher crime of the act itself and the conspirators can only be indicted for and convicted of the latter — all as principals under the statute. —6 Am. & Eng. Ency. Law, p. 863. The rules of evidence, however, applicable to the establishment of a conspiracy, are the same, of course, Avhetfier the parties are charged and being tried for the conspiracy itself or for the crime committed in execution or attempted execution of it.

It has been repeatedly held that it is not necessary, in order that the fact of the conspiracy may be established, that it should be proved by evidence of an express agreement or compact between the alleged conspirators, or by direct evidence of any agreement or compact; but that it may be proved inferentially, or by circumstantial evidence. Conspiracies from their very nature are usually entered into in secret, and are consequently difficult to be reached by positive testimony, which renders it peculiarly necessary and proper to permit them to be inferred from circumstances. — Morris v. State, 146 Ala. 88, 41 South. 274. Nor need it be shown that there was a prearrangement to do the specific wrong complained of. — Pierson v. State, 99 Ala. 152, 13 South. 550.

The acts, declarations, and conduct of each conspirator in promotion or in relation to the object or purpose of the conspiracy, being considered in law as the acts, declarations, or conduct of each co-conspirator, may be given in evidence against him; but in order to justify the admission of such evidence by the court there must be proof aliude sufficient to show prima facie a conspiracy, which is for the court to determine. — McAnally v. State, 74 Ala. 16. When this has been determined in favor of the state, and the evidence mentioned is admitted, it then, of course, becomes a question for the jury to finally decide from all the evidence — these acts, declarations, and conduct of the conspirators coupled with the evidence aliunde — whether or not the conspiracy alleged in fact existed. Their verdict, so finding, is, of course, beyond our province to review. We can only determine on proper objection and exception whether the court erred in admitting the evidence of the acts, declarations, and conduct of the alleged co-conspirators, which rests solely upon the question as to whether or not the evidence independent of such acts and declarations warranted an inference of the conspiracy.

We are of opinion that it all taken and considered together does in this case; and that the court properly admitted proof of the separate acts of Bud Smith. And while the general rule is that such evidence aliunde— a sufficient amount at least to show prima facie a conspiracy — should precede in the order of proof the acts, declarations, and conduct of the co-conspirator; yet we do not regard this as an ironclad rule, but are of opinion that it, fixing the mere order for the introduction of evidence, was established for the purpose rather of expediting the business and saving the valuable time of the trial court than of protecting or securing any supposed right the defendant might have. If there is no evidence aliunde sufficient to show prima facie the conspiracy, it should be known in the early stage of the trial, that the court may then put an end to the case and proceed to other business, without the useless consumption of its time in hearing evidence of acts or declarations of a co-conspirator, which must in the end be excluded in the absence of such other evidence. If, on the other hand, there is such evidence aliunde and it is brought out at any stage of the trial, the court will not be put in error for having previously during the trial admitted out of the usual order evidence of the acts and declarations of a co-conspirator, for the reason that as a final result the defendant has suffered no injury. We quote with entire approval the following, from the Supreme Court of Michigan: “The proper order of proof in cases of conspiracy is first to give evidence of the unlawful combination, and afterwards to show the acts and declarations of the conspirators in pursuance thereof, or in some manner to connect them severally therewith. But it often happens that the existence of the conspiracy is only made out by inference from the facts and declarations of the several parties thereto; and to exclude evidence of these until the conspiracy is established in some other way would, in many cases, give the guilty parties immunity. There is no class of cases in which it is more important that the circuit judge should have a large discretion as to the order in which evidence should be received, and this discretion cannot he reviewed on error except in clear cases of abuse. The opening of the case by the prosecution and any further explanation that may be called for will generally enable the judge to exercise his discretion in such manner as, while not shutting out proper evidence, shall at the same time protect the accused from being prejudiced by testimony which, in the end, shall prove irrelevant, or not legally competent to charge the party on trial. And whenever facts are proved which depend upon other facts to give them a bearing upon the guilt of the accused, if such other facts are not put in, the court máy at the conclusion of the trial exclude the evidence.” — People v. Saunders, 25 Mich. 119; 3 Ency. Ev. 425.

There are so many objections and exceptions by defendant in the present case to the introduction of evidence — many of which are without merit and some of which are of sufficient merit to necessitate a reversal— that we can best dispose of them all by first setting out in a general way those facts, which the evidence for the state tended to establish, which we think material, to wit: That early on a Monday morning in June, about daybreak, the parties assailed, to wit, John Perry, Mrs. E. F. Perry, Henry Wilkes, and Ernest McQarley, were riding in a wagon across a field rented by the former, said John Perry, from defendant and Bud Smith, defendant’s said son, en route to Lineville, Ala., from the former’s home, which was on a part of the said land so rented. That Mrs. E. F. Perry was said John Perry’s mother and resided with him, and Henry Wilkes and Ernest McCarley, the other two persons in the wagon, were neighbors, who had spent the night before at his house. That just after the wagon had crossed the field and passed into the road and crossed a little bridge, spanning a ditch or branch, not far from Bud Smith’s barn and about 200 yards from John Perry’s house, the parties in the wagon were fired at twice with a. shotgun in the hands of a person in the field by the ditch some 40, 50, or 60 yards distant, near whom was standing another person. That the person doing the shooting was recognized by some of the occupants of the wagon as Bud Smith, though none of them were able to identify his companion. That defendant and Bud Smith were father and son and landlords of said John Perry, and they lived only about half or three quarters of a mile apart, and John Perry lived from 160 to 200 yards south of Bud Smith’s. That in the early morning about the time of the shooting the defendant was seen by others going across a field towards his house in a fast walk from-the direction of the shooting and subsequently entering the back door of his house upon reaching it. That there were two sets of tracks at the place where the person stood who did the shooting. That on Friday before the shooting on Monday the defendant and his said son, Bud Smith, had a falling’ out with their tenant, John Perry. That following this, on Sunday before the shooting the defendant passed the house of another one of his tenants, witness E. M. McCarley, father of the McCarley who was in the wagon at the time of the shooting, and requested him to see John Perry for him. That witness saw Perry, and later in the same afternoon defendant returned and ascertained from witness what Perry had said. That this was to the effect that Perry said “it wras too late; that defendant had refused to furnish him on the Friday before, and it was'too late now; that he Avas going to Lineville the next clay, Monday, to see about giving up his mules to the man from Avhom they were purchased.” That defendant then said he did not want Perry to leave and that he should not leave until lie gave satisfaction for the debt he OAved him for the corn he let him have, Avhich Avas then in John Perry’s crib, that he would have to return it or pay for it and make satisfaction to Bud Smith about the mules — the latter being a surety on the note for the mules — and that defendant Avanted Perry to turn the mules over to Bud Smith. That defendant appeared to be angry and from witness’ house he Avent direct to Bud Smith’s house. That later in the same eA'ening, Sunday afternoon about sundOAvn, the two appeared at the lot, where Perry’s wife was out milking her cow. That the defendant asked her “what had got the matter Avith John,” and that upon her reply that it Avas “a right smart,” that defendant had quit furnishing him, the defendant said that he could prove that John had a sack of flour and a middle of meat hidden out, etc. That, hearing the quarreling, Mrs. E. F. Perry, John Perry’s mother, Avent cIoavu to the lot Avhere her daughter-in-laAv and the said Smiths were, whereupon defendant jumped cloAvn off the fence, Avbere he Avas sitting, and made towards her with a knife in his hand and angrily said, in effect: “You all shall not take a d-thing off this place until John pays me what he owes me. * * * You all have got to get out of that house to-night, and I’m not afraid to put you out by myself; but I’ll be - if I don’t lose my heart’s blood before you shall take a thing out of that house until John pays me Avhat he owes me.” That witness told him she was going to have her oavu things, Avhich she could prove, but defendant said she Avas not to move a - thing out of that house until John paid him. That Bud Smith was present during all of this time, having gone there with defendant; and that after this altercation with the women the two, defendant and Bud, left the lot and went on off up the road together about night or nearly dark. That about 2 or 3 o’clock that night, or about an hour before John Perry and the others mentioned left in the wagon for Lineville early Monday morning. Bud Smith was seen with a gun hiding in Perry’s back yard, and ran and disappeared upon being discovered. That from John Perry’s house there are two roads leading to Lineville — each running in sight of either the house of Bud Smith or that of defendant — and which are the ones usually traveled; but that John Perry with the others in the wagon on the morning of the shooting took neither of these roads, but went across the field; and upon reaching the place, hereinbefore mentioned, the parties in the wagon were fired at twice by Bud Smith, as before detailed. That by him was standing another unrecognized party. That two sets of tracks were after-wards found there, and the direction in which they led, but nothing to indicate whose they were, or any peculiarities. The evidence tending to establish the facts we have detailed was properly admitted. It was also proper to show any confessions made by defendant, or any of the acts and declarations of Bud Smith connecting himself with the offense; since we are of opinion there is sufficient evidence, outside of the separate acts of Bud Smith, to show prima facie a conspiracy. If defendant was present aiding or abetting Bud Smith, who is confessedly guilty of doing the shooting, then defendant is guilty. If defendant was not present at the time, he is still guilty if he previously counseled with Bud Smith to do the act, or counseled or conspired with Bud Smith to unlawfully prevent by force John Perry or his family from taking anything of their own off the premises when they left, or from leaving until Perry had given satisfaction for the corn or mules, and Bud Smith did the shooting in execution or attempted execution of this conspiracy. — Bridges v. State, 110 Ala. 18, 20 South. 348. Pierson v. State, 99 Ala. 152, 13 South. 550.

The court should not have permitted the evidence to the effect that, after the Sunday evening quarrel and alleged threats then made by defendant, John Perry went off and got some of his neighbors to spend the night at his house, and that they and his family and self sat up there together all night watching for the Smiths. These matters were res inter alios acta and were not admissible even for the purpose for which they were used, that of bolstering up the testimony of John Perry to the effect that violent threats had been made by the Smiths to come into his house that night. A witness is not permitted to make testimony to hear out and substantiate a statement of his as to what had previously occurred. These neighbors might testify as to any material fact occurring at John Perry’s house that night, and, if defendant questioned their presence, he might on cross-examination ascertain why they were there and why they were up at the unusual hour.

It was likewise error to permit the witness Ernest McCarley to state that in his judgment the parties who did the shooting were Bud Smith and the defendant, since he stated positively that he did not recognize either of the parties, but concluded or judged that it was the Smiths named from the fact of the previous trouble between them, himself, and John Perry.

After the defendant became a witness in his own behalf, or after he offered evidence of his good character, it was proper for the state, of course, to assail his character, which was done. If, however, in the examination of the witnesses on the coming trial, the usual formula of questioning in this, particular be followed, it will avoid tbe objections and exceptions now urged by defendant. A character witness, to be competent as such, must first be able to state that he knows the general character of the defendant in the community in which he lives; then whether it is good or bad. If bad, then, if it be desired to impeach defendant’s veracity, the witness may testify that from his general knowledge of that character he would not believe the defendant on his oath in a court of justice; either generally, or the witness may, as in this case, limit it to a case or matter where and in which defendant is interested.

As a general rule, in cases of assault, assault and battery, assault with intent to murder, or homicide, while it is always permissible to show the fact that there had been a previous difficulty between the parties in order to establish a motive for the act in question, yet the law of evidence forbids the details being given in such trials, because they are immaterial. But when, as in this case, a conspiracy is sought to be established in order to hold defendant responsible for the act of another party, Bud Smith, who did the shooting, it is highly essential, we think, to show all the defendant said in the Sunday afternoon quarrel between him and some of the parties, when Bud Smith was present, and all he said shortly before to witness McCarley, from whose place, immediately afterwards, defendant went direct to Bud Smith’s house. These details were material in tending to establish against defendant the fact that there was a conspiracy.

The evidence is without conflict that the gun, which was fired at the persons in the wagon, was loaded with only bird shot, which did not penetrate the skin and produced only slight wounds. The evidence as to the distance the person who did the shooting was standing at the time is conflicting; the state’s witnesses putting it, one, upon estimate, at 40, 50 or 60 yards, and the other at 63 steps, which he says he ascertained from actual subsequent measurement, while those for defendant put it at about 125 yards. We are of opinion that under the facts detailed it was competent for the defendant to show the carrying distance of a gun of the kind used, its danger zone, and that its carrying power, as the gun used was charged and loaded, was insufficient under any circumstances to produce death or serious bodily harm at a distance of 40 yards. The opinions of witnesses as to these matters are competent, provided the witnesses áre first shown to be sufficiently qualified by experience and general or special knowledge of the subject to give an opinion.

The court should have given the following charge requested by defendant: “If it would not be possible to kill a person with a shotgun at the distance which separated the assailant from the persons assaulted, as sworn to in this case, and the assailant knew of the impossibility, there cannot be a conviction of an assault with intent to murder.” — Williams v. State, 77 Ala. 53; Meredith v. State, 60 Ala. 445; 50 Ala. 119; 78 Ala. 154; Hall v. Posey, 79 Ala. 84; B. R. L. & P. Co. v. Lee, 153 Ala. 391, 45 South. 164; Duncan v. Railroad Co., 152 Ala. 118, 44 South. 418; Mansfield v. Morgan, 140 Ala. 567, 37 South. 393. An intent to murder is an essential ingredient of the crime denominated in section 6309 oL: the Code as “an assault with the intent to murder.”— McCormack v. State, 102 Ala. 157, 15 South. 438; Walls v. State, 90 Ala. 618, 8 South. 680. An intent is a state of the mind and not susceptible of direct or positive proof. Upon the theory that every rational being acts, and speaks alone from motive or by direction of the mind, we ascertain circumstantially his mental status-behind, the particular act or speech by using the latter as its interpreter. Hence the law presumes that every person intends the natural consequences of his acts. The negative of the proposition is equally true. Hence, if the jury believed that it was impossible for an act of the kind complained of in this case to result in death, and that it did not do so and that the person doing the act knew at the time it could not do so, then the person doing the act, as well as his confederates, are entitled to an acquittal of assault with intent to murder, because the facts detailed negatived conclusively an intent to murder.

Written charges 10, 11, and 12 were properly refused. Each is an incorrect statement of the law, as applied to some tendencies of the evidence, in that it assumes that the actual firing of the gun by defendant was necessary to make him guilty.

Charges 16 and 34 were properly refused. The law is contrary to the statement contained in each of those charges. A person may be guilty of assault with the intent t’o murder, if the jury believe he had such intent at the time, although the means selected for its execution and used in its attempted execution would not ordinarily accomplish the result intended; provided the person was ignorant of this fact and thought he was in fact employing means callable of executing his design.— People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 17 L. R. A. 627, 29 Am. St. Rep. 165; Christian v. State, 133 Ala. 109, 32 South. 64. It is the criminal intent, followed by an attempt to execute, which the law punishes. If the means chosen are not adapted to the end, it furnishes a strong but not conclusive inference that there was no such intent. If, on the other hand, he at the time had knoAvledge of their impoten cy, the case is different and the conclusion irresistible that he had no intent to murder. The case of State v. Clarissa, 11 Ala. 57, is not authority for the charge. That was a charge “of attempt to poison” and not of “intent to poison,” and the court there properly held that there, could be no conviction unless the concoction administered was actually a poison. If it was not, although the person administering it thought it was, there could be no conviction of an “attempt to poison,” though there might of an “intent,” if the law inhibited it.

What we have said in a general way herein sufficiently indicates our view of the numerous other assignments of error — some 50 — to relieve the necessity of considering them in detail.

The judgment of conviction is reversed, and the cause remanded.

Reversed and remanded.