7 Div. 1.
August 15, 1949. Rehearing Denied October 5, 1949.
Appeal from the Circuit Court for Calhoun County, W.D. DeBardeleban, J.
The following charges were refused to defendants:
"X. I charge you, gentlemen of the jury, that you cannot consider any evidence introduced after the State first rested in connection with J.B. Stovall's case.
"Y. I charge you, gentlemen of the jury, that evidence of what took place after the commission of the alleged offense, cannot be considered on the question of aiding and abetting.
"6. I charge you, gentlemen of the jury, that if after a full consideration of all the evidence in this case the guilt of the defendant is not proven to a moral certainty, then you should find the defendants not guilty.
"3. I charge you, gentlemen of the jury, that if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendants' guilt, then this is sufficient to raise a reasonable doubt and you should acquit the defendants.
"8. I charge you, gentlemen of the jury, that the only foundation for a verdict of guilt in this case is that the entire jury shall believe from the evidence, beyond a reasonable doubt and to a moral certainty, that the defendants are guilty as charged in the indictment, to the exclusion of every probability of their innocence, and every reasonable doubt of their guilt, and, if the prosecution has failed to furnish such measure of proof, and to so impress the minds of the jury of their guilt, they should find them not guilty.
"10. I charge you, gentlemen of the jury, that if you are not reasonably satisfied beyond all reasonable doubt, to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the guilt of the defendants, then you should find them not guilty; and it is not necessary, to raise a reasonable doubt, that the jury should find from all the evidence a probability of defendants' innocence, but such a doubt may arise, even when there is no probability of their innocence in the testimony, and, if the jury have not an abiding conviction to a moral certainty of their guilt, it is the duty of the jury to acquit them.
"12. I charge you, gentlemen of the jury, that if the evidence for the State consists of testimony as to the truth of which you have a reasonable doubt, you must not convict the defendants, although you may not believe the testimony of the defendants' witnesses."
Roderick Beddow, of Birmingham, Hugh D. Merrill, Jr., of Anniston, and G. Ernest Jones, Jr., of Birmingham, for appellants.
An indictment for assault with intent to murder by operation of law includes assault and battery with a weapon, assault and battery, and simple assault. McKinney v. State, 31 Ala. App. 618, 21 So.2d 116; Craven v. State, 22 Ala. App. 39, 111 So. 767; Ellis v. State, 15 Ala. App. 919, 72 So. 758; Code 1940, Tit. 15, § 323; Maddox v. State, 31 Ala. App. 332, 17 So.2d 283; Fleming v. State, 107 Ala. 11, 18 So. 263; Phillips v. State, 170 Ala. 5, 54 So. 111; Lewis v. State, 121 Ala. 1, 25 So. 1017. A defendant is entitled to have the court charge on the lesser offense included in the indictment where there is any reasonable theory from the evidence which would support a conviction for the lesser offense. Kelly v. State, 27 Ala. App. 584, 176 So. 806; Id., 235 Ala. 5, 176 So. 807. Assault with intent to murder is an assault with the intent to take life under circumstances which, if successful, would constitute murder in either degree. Horn v. State, 98 Ala. 23, 13 So. 329; Chestnut v. State, 7 Ala. App. 72, 61 So. 609; Bowen v. State, 32 Ala. App. 357, 26 So.2d 205. It is for the jury to determine whether or not palliating circumstances, or lack of malice, existed which would reduce the offense to a lesser one. Meredith v. State, 60 Ala. 441; Bowen v. State, supra; Compton v. State, 110 Ala. 24, 20 So. 119; Lett v. State, 1 Ala. App. 18, 56 So. 5; Smith v. State, 88 Ala. 23, 7 So. 103; Williams v. State, 77 Ala. 53. Concurrence of adequate provocation and sudden passion will reduce murder to manslaughter. Peel v. State, 144 Ala. 125, 39 So. 251; Reeves v. State, 186 Ala. 14, 65 So. 160; Davis v. State, 214 Ala. 273, 107 So. 737; Williams v. State, 18 Ala. App. 438, 93 So. 55; Easley v. State, 246 Ala. 359, 20 So.2d 519.
A.A. Carmichael, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
The evidence clearly shows appellants to be guilty of assault with intent to murder, and there is no evidence authorizing a conviction for a lesser, included offense. In such circumstances the court is not bound to charge upon the lesser offenses included in the indictment. Whitehead v. State, 206 Ala. 288, 90 So. 351; Brazier v. State, 25 Ala. App. 422, 148 So. 688; Reeves v. State, 17 Ala. App. 684, 88 So. 197.
Jack Stovall and J.B. Stovall, brothers, were jointly indicted for assault with intent to murder. The trial below was conducted without a severance and resulted in the conviction of each indictee as charged.
Without dispute in the evidence Jack Stovall inflicted rather severe wounds on the body of James Crump by shooting him with a shotgun.
The theory and contention of the State was that J.B. aided and abetted in the commission of the offense.
The prime factual issues revolved around the inquiry of whether or not Jack was justified in the assault on the doctrine of self defense as he claimed.
The testimony for the defendants tended to show that at the time the shot was fired Crump was advancing on Jack in a threatening manner with something in his hand. It appears that Crump had reached within a distance of about ten or fifteen yards when Jack fired the gun.
The incident occurred on the streets of Anniston in the nighttime, but the lights around afforded fair visibility.
There was much conflicting evidence relating to occurrences between the parties as they journeyed in separate automobiles up and down the highways for several hours prior to the main event. Finally the cars were halted at a barbecue or lunch stand, and there the assault ensued.
Among the written charges which were refused to appellants are these:
"D. I charge you, gentlemen of the jury, that a charge of assault with intent to murder includes a charge of assault and battery."
"M. I charge you, gentlemen of the jury, that the offense of assault with a weapon is included in the offense of assault with intent to murder."
The action of the court in refusing these instructions presents the chief question for our review.
An indictment for assault with intent to murder includes the lesser offenses of assault and battery and assault with a weapon. Title 15, Sec. 323, Code 1940; Horn v. State, 98 Ala. 23, 13 So. 329; Maddox v. State, 31 Ala. App. 332, 17 So.2d 283; McKinney v. State, 31 Ala. App. 618, 21 So.2d 116.
A defendant who is accused of the greater offense is entitled to have the court charge on the lesser offenses included in the indictment if there is any reasonable theory from the evidence which would support the position. Kelly v. State, 235 Ala. 5, 176 So. 807.
Assault with intent to murder is an assault with intent to take life under circumstances which, if successful, would constitute murder in either degree. Chestnut v. State, 7 Ala. App. 72, 61 So. 609; Bowen v. State, 32 Ala. App. 357, 26 So.2d 205.
Therefore malice is an essential ingredient of assault with intent to murder. Smith v. State, 88 Ala. 23, 7 So. 103.
Chief Justice Stone writing for the Supreme Court in Williams v. State, 77 Ala. 53, stated: "It is not every assault with intent to kill that is an assault with intent to commit murder. There must be malice in the attempt to take human life, to constitute this statutory felony. But, when the assault is made with a deadly weapon, in sufficient proximity to inflict a deadly wound, the law implies malice from the use of such instrument, and casts on the defendant the burden of proving that the killing, or attempt to kill, was in self-defense, or, if successful, would only be manslaughter; unless such defensive facts and circumstances are shown in the testimony which proves the killing, or attempt to kill."
In the case at bar in the matter of instant concern the question is whether or not there was any evidence from which the jury could draw an inference that the shooting was the result of passion suddenly aroused by sufficient provocation. That is to say, whether or not the jury was authorized under the proof to find that the element of malice was not present.
If this query must be answered in the affirmative, it follows that the tendered charges should have been given.
In approaching this inquiry we are not concerned with an attempt to reconcile the conflicts in the evidence, nor are we compelled to conclude which is true and which is false. These matters were addressed to the jury for solution.
"The province of court and jury are distinctly marked, and neither can lawfully invade the other." Dennis v. State, 112 Ala. 64, 20 So. 925, 926.
See also, Lett v. State, 1 Ala. App. 18, 56 So. 5.
We are clear to the conclusion that the combination of circumstances as disclosed by the record, some of which we have delineated, presented a jury question as to whether or not the shooting was the result of passion suddenly aroused by sufficient provocation.
"In the consideration of the infirmities of humanity, the law regards a sudden transport of passion, caused by adequate provocation, as sufficient to rebut the imputation of malice which would otherwise arise. In such case the law imputes the homicide to inherent frailty, instead of malice or formed design." Smith v. State, 83 Ala. 26, 3 So. 551, 552.
By the indicated action of the trial judge the question of the guilt of the defendants of the lesser offenses included in the indictment was erroneously excluded from the consideration of the jury.
We come to consider the other written instructions which were refused to appellants.
Refused charges 1-a, 4, and 5 are affirmative requests and under the evidence were not due to be given.
Charges numbered and lettered 1 and C are each covered by given instructions or the court's oral charge. Title 7, Sec. 273, Code 1940.
Charges X and Y are invasive of the province of the jury.
If there had been only one defendant on trial, it would have been proper to give charge number 6. Yorty v. State, 11 Ala. App. 160, 65 So. 914. By the use of the singular "defendant" the instruction would have been confusing to the jury.
There are some other questions presented which we will not review. They will not likely reoccur in the event of another trial.
For indicated error the judgment of the lower court is ordered reversed and the cause is remanded.
Reversed and remanded.
BRICKEN, P.J., not sitting.