1 Div. 125.
February 12, 1920.
Appeal from Circuit Court, Baldwin County; A. E. Gamble, Judge.
S.C. Jenkins, of Bay Minette, for appellant.
The court should have instructed the jury on the subject of insanity under the plea. 50 So. 954. A special verdict was required. 60 Ala. 78; 40 Ala. 680, 91 Am. Dec. 496; 39 Ala. 229; 136 Ala. 129, 33 So. 818; 112 Ala. 41, 21 So. 79.
Charges 1 and 2 should have been given. 68 Ala. 569; 81 Ala. 51, 1 So. 574; 72 Ala. 244; 49 Ala. 9; 58 Ala. 375; 32 Ala. 560. Charge 4 should have been given. 148 Ala. 612, 42 So. 993; 143 Ala. 113, 39 So. 257; 154 Ala. 65, 45 So. 680; 186 Ala. 282, 65 So. 329.
J. Q. Smith, Atty. Gen., for the State.
No brief reached the reporter.
Appellant, being arraigned upon an indictment charging robbery, pleaded not guilty. Afterwards he was permitted by the court to add the further plea of "not guilty by reason of insanity." This is shown by the order of arraignment. The recital of the judgment entry showing the trial and its result is that —
"The said defendant being duly arraigned upon said indictment charging him with robbery for his plea thereto says not guilty."
Appellant contends that the record aforesaid shows error for that it shows that the verdict and judgment failed to respond to his special plea of not guilty by reason of insanity. He also complains that the court failed to instruct the jury in respect to the issue raised by his said plea. These two contentions are answered by the record in this cause to the exclusion of every doubt as follows. When the jury in a capital case decides both the issues raised by the plea of not guilty and not guilty by reason of insanity against the defendant, a general verdict of conviction, as for the question raised by this appeal, amply responds to both issues. Such is the effect of the statute (Code, § 7177) as interpreted by this court (Maxwell v. State, 89 Ala. 150, 165, 7 So. 824), nor does reason suggest any possible advantage to the accused in holding that any further response should be required. As for the failure to instruct the jury, counsel for defendant announced his satisfaction with the court's oral charge, which omitted any reference to the special plea, nor was any special charge requested on the point. No doubt the court omitted any reference to the plea for the reason that there was no evidence to sustain it, and this would have been good reason for refusing special charges on the subject, had any such been requested. There was testimony to the effect that defendant, on the day of the crime and shortly thereafter, being at a house in the neighborhood, "was playing with the children there, the larger ones having gone to school," and "acted that day like he always did, just playing around with children," and upon this testimony defendant's counsel rely as tending to establish the special plea. However, they can say no more than that this testimony showed defendant to be of "low and childish mentality or disposition," and to us it is clear that, standing alone, as it did, it was utterly insufficient to take to the jury the issue as to the alleged insanity of defendant, as to which the burden of proof rested upon him. Code, § 7175.
Most of the exceptions reserved to the court's rulings on evidence are obviously without merit and need no discussion. As for the confession made to Ex Sheriff Eubanks, in the circumstances appearing to the court at the time when the witness' testimony as to it was admitted, there was nothing to impeach the voluntary character of the confession. Afterwards defendant gave testimony as to facts which, if accepted as true, would have required the rejection of the confession, and in that case it would have been the duty of the court to exclude on proper motion. Bob v. State, 32 Ala. 560. But the admissibility of the confession was a question for the court upon consideration of all the evidence admitted in relation thereto, subject to review here on proper exception reserved. Fowler v. State, 170 Ala. 65, 54 So. 115; 4 Mich. Dig. p. 326, § 490 (2), and cases there cited. Upon the case thus far stated it can by no means be said that the trial court committed error in admitting the confession.
Defendant also made a confession of guilt to the sheriff of the county, and to that defendant objected. What has been said with respect to the confession to Eubanks applies here. Besides, as a part of this confession, defendant stated where a part of the fruits of his crime could be found in the woods about three miles away and went with the sheriff and pointed out the place to him where money taken from the chief prosecuting witness was found along with defendant's coat and a pistol. So much of the confession as was thus corroborated was admissible without regard to its voluntary character. Gregg v. State, 106 Ala. 44, 17 So. 321.
Charge 1, requested by defendant, was properly refused for the reason that in defining robbery it excluded consideration of that very theory of the facts which the state's evidence tended to support, viz., that property was taken from the presence of the person offended against, and under his direct physical, personal control, that being the equivalent of a taking from his person within the meaning of the indictment and of the law on the subject. Thomas v. State, 91 Ala. 34, 9 So. 81. The proof showed that defendant, having twice shot Joe Whitney through the body with a pistol, took Whitney's coat, which lay beside him on the seat of the boat in which he was, and carried it away with him. In a pocket of the coat was a bag, and in the bag was the money described in the indictment. We cannot assent to the proposition that the evidence showing these facts tended to support only a finding that defendant intended to steal the coat, not the money. The evidence went to show that the purpose of defendant's assault upon Whitney was to get money and that he afterwards told the officers where the money, along with other articles, could be found. The jury were authorized to find that he intended to do what in fact he did, viz., take the money described in the indictment from the person of its owner.
Charge 2, refused to defendant, overlooked the familiar principle to which we have hereinabove cited Gregg v. State, 106 Ala. 44, 17 So. 321. Moreover, this charge, in effect, submitted to the jury the question of the admissibility of confessions. Bob v. State, supra; Matthews v. State, 55 Ala. 65, 28 Am. Rep. 698; Redd v. State, 69 Ala. 255.
The use of the word "possibility" in charge 4 rendered it bad. The state was not required to remove by proof the possibility that defendant was innocent, but only to establish his guilt beyond a reasonable doubt.
There is no error, and the judgment and sentence of the trial court must be affirmed.
All the Justices concur.