In Bachelor v. State, 216 Ala. 356, 113 So. 67, this court affirmed that electrocution was a valid punishment to a defendant, if resentenced, who had been sentenced to "be hanged by the neck until he is dead."Summary of this case from Brown v. State
5 Div. 976.
May 5, 1927. Rehearing Denied June 4, 1927. Further Rehearing Denied June 11, 1927.
Appeal from Circuit Court, Elmore County; George F. Smoot, Judge.
Rushton, Crenshaw Rushton, of Montgomery, and Oakley W. Melton, of Wetumpka, for appellant.
Testimony as to statements of a codefendant, made after the homicide, in absence of defendant, are not admissible. Delaney v. State, 204 Ala. 685, 87 So. 183; Everage v. State, 113 Ala. 102, 21 So. 404; Blair v. State, 211 Ala. 53, 99 So. 314. Inculpatory admissions in the nature of a confession are subjected to the same rules of admissibility as direct confessions and are therefore prima facie involuntary and inadmissible. Wilson v. State, 84 Ala. 426, 4 So. 383; Shelton v. State, 144 Ala. 106, 42 So. 30; McGehee v. State, 171 Ala. 19, 55 So. 159. The insanity of defendant's ancestors and kinsman on the trial of a criminal case is competent evidence and the exclusion of the same constitutes reversible error. Russell v. State, 201 Ala. 572, 78 So. 916; Wigmore on Evid. §§ 232, 1936; 14 R. C. L. 621. The remark of special prosecutor to the effect that he had been "watching defendant during the whole trial and he has not shed a tear" was incurable misconduct, and failure of the trial court to grant a new trial constituted reversible error. Constitution 1901, § 6; Code 1923, § 5632; Bestor v. State, 209 Ala. 693, 96 So. 899; Moulton v. State, 199 Ala. 411, 74 So. 454; B. R. L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; State v. Davis (Mo. Sup.) 190 S.W. 297; State v. Ferrone, 97 Conn. 258, 116 A. 336. The remarks of state's counsel in closing argument constituted misconduct, and a new trial should have been granted. B. R. L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Moulton v. State, 199 Ala. 411, 74 So. 454; Cole v. State, 104 Tex. Cr. R. 533, 286 S.W. 204. The failure to give defendant's requested charges was reversible error. (A-1 and D) Parrish v. State, 139 Ala. 16, 36 So. 1012; (A and B) Brown v. State, 109 Ala. 70, 20 So. 103. Section 5304 of the Code of 1923 (Code 1907, § 7648) was repealed by operation of section 5320, and said section 5304 was the only law under which a convict could be resentenced. There is now no law by which defendant can be hanged and no court which can direct that he be electrocuted. Aaron v. State, 40 Ala. 307; Ex parte Newton, 94 Ala. 431, 10 So. 549. It is apparent from the whole record that the misnumbering of the section amended was simply a clerical error, in no way misleading. The record is self-correcting, and the bill as finally passed and signed by the Governor is in all respects valid. Geo. Bolln Co. v. North Platte Irrig. Co., 19 Wyo. 542, 121 P. 22, 39 L.R.A. (N.S.) 868; Town of Walnut v. Wade, 103 U.S. 683, 26 L.Ed. 526.
Charlie C. McCall, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty. Gen., and Holley Milner, Tate Renau and Huddleston Glover, all of Wetumpka, for the State.
The reply that a defendant makes to a statement wherein he is accused of crime is not in the nature of a confession, but is in nature of an inculpatory statement or declaration, and no predicate that it is voluntary is necessary. Meadows v. State, 136 Ala. 74, 34 So. 183. But if required to be shown to have been voluntarily made, the facts and circumstances here show the making of this statement was voluntary. Heningburg v. State, 153 Ala. 16, 45 So. 246; Bush v. State, 136 Ala. 85, 33 So. 878. At any rate, the statement of the negro was adopted and corroborated by the subsequent confessions of the defendant, thus curing any error that might have been made. Edwards v. State, 205 Ala. 160, 87 So. 179. The question propounded to witness Macon, whether the great-grandmother of defendant was crazy, called for a conclusion of the witness, and, further, no predicate had been laid for such testimony. Braham v. State, 143 Ala. 28, 38 So. 919; James v. State, 193 Ala. 55, 69 So. 569, Ann. Cas. 1918B, 119; Hollingsworth v. Miller, 212 Ala. 187, 101 So. 881; 16 C. J. 752; Fountain v. Brown, 38 Ala. 72; Ford v. State, 71 Ala. 385; Burney v. Torrey, 100 Ala. 173, 14 So. 685, 46 Am. St. Rep. 33. When the court sustained the objection to the argument of state's counsel and excluded it from the jury, the effect of such argument was cured. Anderson v. State, 209 Ala. 36, 95 So. 175; Burkett v. State, 215 Ala. 453, 111 So. 34; Watkins v. State, 21 Ala. App. 585, 111 So. 43; Cagle v. State, 211 Ala. 346, 100 So. 318. Comment upon the result of a verdict of not guilty by reason of insanity and upon the argument of defense counsel was legitimate argument. Russell v. State, 201 Ala. 573, 78 So. 916; Anderson v. State, 209 Ala. 36, 95 So. 171; Charge D is not a correct statement of law. Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193. Charges A and B are bad. Brown v. State, 109 Ala. 84, 20 So. 103. To justify a new trial on account of argument of counsel, same must be grossly improper and highly prejudicial. B. R. L. P. Co. v. Gonzalez, 183 Ala. 286, 61 So. 80, Ann. Cas. 1016A, 543. Section 5320 of the Code of 1923 does not repeal the sections of the Code of 1907 so as to make same imperative against offenses committed prior to the date the new section became operative. Miller v. State, 40 Ala. 54; Miles v. State, 40 Ala. 39; David v. State, 40 Ala. 69; Moore v. State, 40 Ala. 49; Jeffries v. State, 39 Ala. 655. The effect of section 7 of the Constitution is to continue the statutes as to hanging in force as to all offenses committed prior to the effective date of the Electrocution Act. Washington v. Dowling (Fla.) 109 So. 588; Shields v. State, 78 Fla. 524, 83 So. 391. To be effective, the repealing act must have been established and promulgated prior to the commission of the offense; and it is not established and promulgated where it is provided that it shall go into effect on a future date. Eliza v. State, 39 Ala. 693; Weatherford v. Weatherford, 8 Port. 174. The Electrocution Act was not validly passed, since the amendment adopted by the House was not the same as that adopted by the Senate.
To render the confession of Hayes Leonard, made to the witness Golden and others in the Montgomery county jail, admissible against the defendant, it was necessary for the state to show that it was made in the presence of the defendant, and that he remained silent or that he affirmed the truth of the statement, and that such affirmation was voluntarily made. Delaney v. State, 204 Ala. 685, 87 So. 183; Rowlan v. State, 14 Ala. App. 17, 70 So. 953; Everage v. State, 113 Ala. 102, 21 So. 404; Blair v. State, 211 Ala. 53, 99 So. 314; McGehee v. State, 171 Ala. 19, 55 So. 159; Whitehead v. State, 16 Ala. App. 427, 78 So. 467.
However, it was not necessary that it be shown that such affirmation of the truth of the confession was made at the same time and place, but if it was subsequently made and shown to be voluntary — that is, made when the mind of the accused was free from the influence of hope or fear excited by menace or encouragement that he would be more favorably dealt with if he confessed — this is all sufficient to authorize its admission in evidence. Banks v. State, 84 Ala. 431, 4 So. 382.
The court, sitting in banc, after careful consideration of the record is of the opinion that it clearly appears that so much of the alleged confession of Hayes Leonard as was given in evidence through the testimony of witness Hasty Golden was made in the presence of the defendant, and the defendant in a subsequent confession to the witness Sellers, shown to be voluntary, affirmed the truth of Leonard's confession in every material respect by stating:
"That everything this old darkie has said is true, with the exception of one thing, and that was this — when he went up on the porch to fire the fatal shot I was not standing right behind him with a pistol — that part is not true. I was there; I planned everything; I was 20 or 30 steps away when he fired the shot."
Under the rule heretofore stated, this evidence was properly admitted and the rulings of the court in this respect were free from error.
The state's objection to the question to the witness Bill Macon, "Was she crazy before she committed suicide?" referring to defendant's great-grandmother, was properly sustained. The witness had testified that he did not know the name of defendant's great-grandmother, that she died of suicide in about the year 1871. This, under the authorities, was not sufficient to qualify a nonexpert witness to give his opinion that the person inquired about was "crazy." Parrish v. State, 139 Ala. 16, 36 So. 1012; Braham v. State, 143 Ala. 28, 38 So. 919; People v. Harris, 169 Cal. 53, 145 P. 520; 16 C. J. 752.
The same observation is true as to the questions to this witness in reference to the insanity of Roxie Williams, Mat Williams, and Reuben Smith. As to his acquaintance with Roxie Williams, the witness testified:
"I knew her mother, Roxie Williams, Roxie Williams is his great-great-great-grandmother."
As to Mat Williams:
"I knew this boy's great-aunt, the sister of his great-grandmother; she was called Aunt Mat Williams. I don't know how long she has been dead. I knew her in her lifetime, but don't know how old she was when I knew her."
Reuben Smith was shown to be a brother of defendant's paternal great-grandmother, and as to his acquaintance with Reuben Smith the witness testified:
"I knew her brother, Reuben Smith; he has been dead a long time. I knew his mental condition."
This does not show such acquaintance and continuous intimacy on the part of the witness with these parties as would enable him to form an accurate and trustworthy opinion as to their mental condition. Jones v. State, 181 Ala. 63, 61 So. 434; Braham v. State, 143 Ala. 28, 38 So. 919; Parrish v. State, supra.
The record shows, to use the language of the bill of exceptions, that:
"During the opening argument of the state, in commenting upon certain testimony to the effect that the defendant was a cry baby, * * * special counsel for the prosecution used the following expression: 'I have been watching him during the whole trial and he has not shed a tear.' The defendant thereupon objected to the above remark by special counsel for the state, the court sustained the objection and instructed the jury as follows: 'Gentlemen of the jury, any remark with reference to the conduct or appearance of the accused during the trial will not be considered by you. It is an improper statement and should not influence you in making up your verdict.'
"Whereupon the defendant's counsel said to the court, 'If your honor please, I suppose your honor has said what would ordinarily be sufficient, but this is an error that is incurable before this jury and, while I know Judge Tate did not intend to do anything wrong, and I hate to make such a motion, I feel compelled to move the court to direct a mistrial and to discharge the jury and summons another.' The court remarked that it has instructed the jury and overruled said motion to discharge the jury and summons another, and the defendant then and there excepted."
The theory of the appellant, as indicated by his motion to direct a mistrial and his argument here, is that the remark of state's counsel was so grossly improper and highly prejudicial that the corrective action taken by the court was wholly inadequate to remove its injurious effects.
Stated in another way, appellant contends that the remark of the prosecuting attorney falls within the exception to the general rule stated in B. R., L. P. Co. v. Gonzalez, 183 Ala. 287, 61 So. 84 (Ann. Cas. 1916A, 543), to the effect:
"That, if the improper remarks are of such a character that neither rebuke nor retraction can entirely destroy their sinister influence, a new trial should be promptly awarded, regardless of the want of a proper objection or exception."
In Bestor v. State, 209 Ala. 693, 96 So. 899, cited and relied on by the appellant, the remarks complained of were of a character more calculated to excite prejudice than the remark here in question, and the conduct of counsel was persisted in by a repetition of the objectionable statement, yet the court denied a new trial because no adverse ruling to the appellant in that case was shown. If the conduct complained of in that case was within the exception above stated, adverse rulings and exceptions were wholly unnecessary.
The statement of counsel complained of here was not a violation of the statute which prohibits comment by counsel on the failure of the defendant to avail himself of the right to testify in his own behalf (Code of 1923, § 5632), and while it was the statement of a fact not given in evidence and was improper, yet it was of a fact within the observation of the jury, and, if true, of which they had probably already taken notice; if not true, it was contrary to what the jury had probably observed. We are therefore of opinion that the corrective instruction by the court was sufficient to avert prejudice to the defendant and error will not be predicated on the refusal of the court to direct a mistrial.
The same observation applies to the remarks of the state's counsel made in the closing argument, to which the court sustained objections. Hall v. State (Ala. Sup.) 113 So. 64; Birmingham Electric Co. v. Cleveland, 113 So. 403; Anderson v. State, 209 Ala. 36, 95 So. 171; Cagle v. State, 211 Ala. 346, 100 So. 318; B. R., L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Russell v. State, 201 Ala. 573, 78 So. 916.
Ante, p. 336.
Post, p. 455.
The bill of exceptions recites that counsel for defendant, in his closing argument, "stated, in substance, to the jury that he was not asking that defendant be turned loose; that defendant had forfeited his right to liberty, and he was simply asking the jury not to kill him."
Commenting on this argument, the prosecuting attorney, in the closing argument, stated that counsel for defendant, "in his argument to the jury, said that defendant ought not to be turned loose, that he had forfeited his liberty, that he admitted there is no merit to his plea of insanity." The defendant objected to so much of the statement as is italicized, and the court overruled the objection. In this respect prosecuting counsel did not transcend the legitimate boundary of discussion. Cross v. State, 68 Ala. 476; Birmingham Electric Co. v. Cleveland, post, p. 455, 113 So. 403.
Charges 3, Y, and X, the affirmative charge for the defendant in different forms, were all properly refused.
Charge D was not a correct statement of the law and was properly refused. Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193; Parrish v. State, 139 Ala. 16, 36 So. 1012.
Charges A and B, refused to the defendant, appear to be in the language of Chief Justice Brickell, used arguendo, in the criticism of the oral charge of the court in Brown v. State, 109 Ala. 70, 20 So. 103, in which the majority of the Justices did not concur. They are argumentative and were properly refused. Charge A-1, if not otherwise bad, uses the expression, "not guilty by reasonable of insanity," and for this reason was properly refused.
The "general atmosphere" doctrine, if such it may be denominated, recognized in Moulton v. State, 199 Ala. 411, 74 So. 454, has no application here. The deceased was the defendant's father-in-law, the families of the defendant and the deceased were friendly, intimately associated, and moved in the same social circles, both families living in the same community, and on the trial the defendant appears to have had the full sympathy and support of his people, and, if there was an atmosphere unfriendly to the defendant's interest, it was only such as developed from the enormity of the crime. If this could be said to justify the granting of a new trial, then the more heinous the offense the greater the chance of the accused to obtain a new trial after conviction.
The facts of the Moulton Case clearly differentiate that case from this.
After careful examination of all questions presented on the record, we find no reversible errors, and the judgment of conviction, rendered on the verdict of the jury finding the defendant guilty and fixing his punishment at death, is affirmed.
The appellant was sentenced to "be hanged by the neck until he is dead," and the court ordered the performance of the execution to "be in accordance with section 5296 of the Criminal Code." Since that sentence was pronounced the method of execution has been changed by operation of law, and the sentence, so far as it directs the method of execution, is annulled, and the case is remanded to the circuit court of Elmore county for proper sentence in accordance with the statute. Code of 1923, §§ 5309, 5310; People ex rel. Kemmler v. Durston, 119 N.Y. 569, 24 N.E. 6, 7 L.R.A. 715, 16 Am. St. Rep. 859; Hall v. State, ante, p. 336, 113 So. 64.
The judgment of conviction is affirmed and the case is remanded for proper sentence.
SAYRE, SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.
ANDERSON, C. J., and GARDNER, J., concur except as to the remandment of the case for sentence, they being of opinion that the date for the execution of the death sentence having expired, it is not only within the power of the court, but is the duty of the court to fix the date for the execution of the death sentence and to order the manner of its execution in accordance with the statute now in force. Buford v. State, 118 Ala. 657, 23 So. 1005; Howard v. State, 110 Ala. 92, 20 So. 365; Code of 1923, § 3260.
It is suggested by the Attorney General that the Act approved September 29, 1923 (Laws 1923, p. 759), entitled "an act providing for the execution of convicts, condemned to death, by electrocution, prescribing the procedure in such cases; and repealing all laws or parts of laws in conflict herewith," was not constitutionally enacted, in that the journals of the House fail to show a concurrence of the House in the action of the Senate on the amendment proposed by the Governor.
The rule prevailing in this jurisdiction is that every enrolled act, regular on its face and found in the custody of the Secretary of State, authenticated by the signature of the President of the Senate and the Speaker of the House as prescribed by the Constitution, is prima facie evidence that it was constitutionally enacted, and this presumption can only be overcome by the contrary being affirmatively made to appear by the legislative journals. If the journals are merely silent on the matter, it must be presumed that the Constitution was in all respects followed, unless the silence is as to matters required to be entered in the journals. If the journals leave the matter in doubt, unless it relates to action which must affirmatively appear on the journals, the statute will be sustained. Ex parte Howard-Harrison Iron Co., 119 Ala. 484, 24 So. 516, 72 Am. St. Rep. 928; Montgomery Beer Bottling Works v. Gaston, Judge, etc., 126 Ala. 425, 28 So. 497, 51 L.R.A. 396, 85 Am. St. Rep. 42; Board of Revenue of Jefferson County v. Crow, 141 Ala. 126, 37 So. 469; State ex rel. v. Porter, 145 Ala. 541, 40 So. 144; State ex rel. Crenshaw v. Joseph et al., 175 Ala. 579, 57 So. 942, Ann. Cas. 1914 D, 248; Jackson v. State, 131 Ala. 21, 31 So. 380; 25 R. C. L. 898, §§ 150, 151.
It is sufficient to say that the court, sitting in banc, has examined the journals of both houses, and notwithstanding it appears that a clerical error appears in the message of the Senate to the House as recorded on the House Journal, relating to the section number of the bill dealt with by the amendment suggested by the Governor, it affirmatively appears that the Governor's message showing the correct number, accompanied the Senate message; and when the record is construed as a whole it appears with requisite certainty that the two houses were in concurrence on the amendment, and that the law was constitutionally enacted.
The appellant's contention, now made, is that the Act of September 29, 1923, repeals section 7648 of the Code of 1907, authorizing a resentence of convicts in certain cases, and hence there is no law under which the circuit court is authorized to change the sentence pronounced in the judgment directing the sentence to be executed by hanging to one directing the sentence to be executed by electrocution.
We deem it proper to say that what was said in the original opinion with reference to the repeal of section 5295 of the Code of 1923 was on the mistaken assumption that what appears as section 5320 in printed volume 2 of the Code of 1923 was in the manuscript prepared by the code commissioner when that document was adopted as the Code of Alabama, by the Act approved August 17, 1923 (Laws 1923, p. 127). But on further examination of the question, we find this is not the true state of the law, as that section was merely printed in the Code under authority of section 4 of the act adopting the Code, and hence the Act of September 29, 1923, providing for the electrocution of convicts sentenced to death, must be interpreted in the light of its own provisions, and the provisions of sections 7 and 22 of the Constitution, and section 5531 (§ 7805, Code of 1907), Code of 1923. The last-mentioned section of the Code provides:
"No penal act shall take effect until sixty days after the approval thereof, unless otherwise specially provided in the act."
In determining when this act took effect, a summary of its provisions is useful.
Section 1 provides for the execution of death sentences by electrocution, prescribing the time within which execution may be fixed by the court.
Section 2 names the executioner up until and including January 1, 1927, as the sheriff, or his deputy in case of his absence or disability, and in case of their disability, such persons as may be appointed by the board of convict supervisors.
Section 3 provides for the issuance of the death warrant and its disposition.
Section 4 prescribes the duty of the sheriff and his compensation for transferring the convict to "Kilby prison at Montgomery."
Section 5 provides the place and method of confinement of the convict pending his execution.
Section 6 prescribes the place of execution.
Section 7 provides who may be present to witness the execution.
Section 8 provides for resentence in case of escape and rearrest after date fixed for execution.
Section 9 provides for execution if the arrest is before the date fixed for execution.
Section 10 provides for the procedure by the officers in case of respites granted by the Governor.
Section 11 provides:
" On or before the 1st day of October, 1926, the board of convict supervisors shall begin the construction of such necessary room or building as may be required to carry out the provisions of this act, and shall continue such construction until said room or building is completed; and said board of convict supervisors shall also, on or before the said 1st day of October, 1926, contract for the purchase of such necessary appliances as may be required to carry out the provisions of this act; and when the execution of a person sentenced to the punishment of death is set for a day subsequent to the last day of February, 1927, the execution of such sentence must be as provided in this act; but when the execution of such sentence is set for a day prior to the 1st day of March, 1927, the execution of such sentence must be as now provided by article 7 of chapter 278 of the Code of 1907." (Italics supplied.)
There can be no question that this is a penal statute, within the meaning of section 5531 of the Code, and unless it can be said that it is otherwise provided in the act, it took effect and was established and promulgated as a part of the law of the land on the 29th day of November, 1923. Washington v. Dowling (Fla.) 109 So. 588; Ross v. New England Mtg. Security Co., 101 Ala. 362, 13 So. 564.
This act, by reference, adopts all of the provisions of article 7 of chapter 278 of the Code of 1907, and in construing the act these statutes are to be treated and considered as if incorporated into and formed a part of the act, and when so construed it is complete in itself, providing the method for the execution of convicts condemned to death — by hanging up to and including the last day of February, 1927, and by electrocution after that date. Sloss-Sheffield S. I. Co. v. Smith, 175 Ala. 265, 57 So. 29; Savage v. Wallace, 165 Ala. 575, 51 So. 605; Darrington v. State, 162 Ala. 63, 50 So. 396; Phœnix Assurance Co. v. Fire Department, 117 Ala. 631, 23 So. 843, 42 L.R.A. 468; Cleveland v. State, 16 Ala. App. 336, 77 So. 930.
Not only this, section 11 of the act specifically provides for the construction of the death room, and authorizes the purchase of the equipment "on or before the 1st day of October, 1926," thus manifesting the legislative intent not to suspend its operation beyond the time provided by section 5531 of the Code.
There can be no doubt, therefore, that this act went into effect on the 29th day of November, 1923, and this being long prior to the commission of the offense for which appellant was convicted, neither the provisions of sections 7 and 22 of the Constitution of this state, nor those of the federal Constitution can be invoked to save the application of this statute to the appellant's case. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Aaron v. State, 39 Ala. 684; Eliza v. State, 39 Ala. 693; Luigi Storti v. Commonwealth, 178 Mass. 549, 60 N.E. 210, 52 L.R.A. 520.
There is no merit in the contention that the repeal of section 7648 of the Code of 1907 deprives the circuit court of the power to fix the date for the execution of the sentence of death as provided by law. That statute was designed to confer jurisdiction to resentence, where the proceedings in the case had terminated in a final judgment and jurisdiction had been lost by the final adjournment of the court for the term, but this rule has no application where the continuity of the proceedings is maintained by appeal and the cause remains in fieri, and by the judgment of the appellate court the cause is remanded to the trial court to complete the proceedings. In such cases, the mandate of the appellate tribunal is all that is necessary to confer jurisdiction on the trial court to proceed. Ex parte Adams, 187 Ala. 11, 65 So. 514; Minto v. State, 9 Ala. App. 95, 64 So. 369; State ex rel. Atty. Gen. v. Gunter, 11 Ala. App. 399, 66 So. 844; Wright v. State, 12 Ala. App. 253, 67 So. 798.
Another view, it appears that before the alleged repealing statute was passed this section (7648) had been brought forward and adopted into the Code of 1923, and the subsequent repeal of that section as a part of the Code of 1907 did not repeal it as a part of the Code of 1923.
Aaron v. State, 40 Ala. 307, is not an apt authority. There the law authorizing the death sentence for the offense for which Aaron was convicted was repealed after the conviction and sentence and the time for the execution of the sentence had expired, and he was brought before the court for resentence. Not so here, the law authorizing the death sentence as well as the manner of its execution was in force at the time the appellant committed the murder and has so continued without change. He was put on notice by the law, if he delayed the execution of the sentence by appeal until after the last day of February, 1927, and he failed in his appeal, the sentence of death pronounced against him would be executed by electrocution.
The application is overruled.
All the Justices concur.