Freeland v. State , 41 Ala. App. 480 ( 1961 )

On Rehearing

HARWOOD, Presiding Judge.

In his brief in support of this application for rehearing, counsel for appellant insists that this judgment should be reversed because of the recommendation of no pardon added to the verdict by the jury. Counsel relies on Kitchen v. State, 66 Okl.Cr. 423, 92 P.2d 860, to support his contention. It is true that the Court of Criminal Appeals of Oklahoma did hold that the inclusion of a recommendation of no pardon did render the verdict invalid. However, this was because of the effect of an Oklahoma statute referred to by the court.

On the other hand, the highest appellate courts of Kentucky and Wyoming, in the absence of any statute, have concluded that such recommendations were mere surplus-age, and due to be disregarded. Winburn v. Commonwealth, 181 Ky. 183, 203 S.W. 1073, 1074; State v. Eldredge, 45 Wyo. 488, 21 P.2d 545.

As stated in the Winburn case, supra, “If a favorable recommendation may be rejected as surplusage, we perceive no reason why an unfavorable recommendation may not also be rejected.” • We agree fully with this view.

While we have found no Alabama case pertaining specifically to a recommendation of no pardon added to a verdict by á jury, the doctrine of numerous of our cases is to the effect that where a verdict is responsive to the issues, and is clear as to a finding of guilt and the punishment, where the jury must impose punishment, then such extraneous matter as may be added to the verdict by the jury does not affect the validity of the verdict, and such extraneous matter is to be regarded as surplusage. Chappell v. State, 19 Ala.App. 648, 100 So. 75; Baldwin v. State, 27 Ala.App. 259, 170 So. 349; Corbitt v. State, 35 Ala.App. 572, 50 So.2d 454; Beattey v. State, 36 Ala.App. 699, 63 So.2d 287.

Counsel also complains that we did no't write to his proposition that the verdict was not supported by a preponderance of the evidence. We had considered this point implicit in our discussion of the sufficiency of the evidence to support the verdict. Regardless, we are clear to the conclusion that this point, under the evidence, is without merit.

Application overruled.