Opinion
6 Div. 981.
June 16, 1931. Rehearing Denied June 30, 1931.
Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.
Elmer Brewer was convicted of assault and battery with a weapon, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Brewer v. State, 223 Ala. 568, 137 So. 455.
See, also, 23 Ala. App. 35, 120 So. 301.
Plea 1 sets up that defendant was on February 6, 1930, duly arraigned and pleaded not guilty, whereupon he was put upon trial, and, after he had pleaded to same and after the state had introduced witnesses and had rested its case, and defendant was thus put in jeopardy, the jury was, on February 7, 1930, discharged by the court without the jury giving a verdict, and discharged without the consent of the defendant.
Plea 2 sets up the facts of arraignment, entering upon trial, qualification, and selection of jurors, etc.; that thereafter the court propounded certain questions to one of the jurors selected to try the case, eliciting the information that said juror was a second cousin of the deceased; that thereupon the court announced that it would be necessary to order a mistrial in the case; that defendant insisted that the trial should proceed, but that the court ordered that a mistrial be entered.
Foster, Rice and Foster, of Tuscaloosa, for appellant.
If after the state has offered evidence and rested the jury is discharged, when there is no manifest necessity for the discharge, or when the ends of justice would not otherwise be defeated, the discharge of the jury, without the consent of the defendant, operates as an acquittal of the defendant, and such discharge can be pleaded in bar on a subsequent trial for the same offense. Ned v. State, 7 Port. 187; Bell v. State, 44 Ala. 393; McCauley v. State, 26 Ala. 135; Grogan v. State, 44 Ala. 9; Hawes v. State, 88 Ala. 37, 7 So. 302; Ex parte Vincent, 43 Ala. 402; 16 C. J. 250; 8 R. C. L. p. 153. The defendant's plea No. 2 of former jeopardy is a good plea, and the court erred to a reversal in sustaining the state's demurrer to said plea, because the plea affirmatively shows that there was no necessity for the discharge of the jury, and shows that the ends of justice would not otherwise be defeated if said jury had not been discharged. State v. Thompson, 58 Utah, 291, 199 P. 161, 38 A.L.R. 697 and note; Tomasson v. State, 112 Tenn. 596, 79 S.W. 802; 8 R. C. L. 156; Batson v. State, 216 Ala. 275, 113 So. 300; Taylor v. State, 222 Ala. 140, 131 So. 236; Carson v. Pointer, 11 Ala. App. 462, 66 So. 910; Henry v. State, 77 Ala. 75; Andrews v. State, 152 Ala. 16, 44 So. 696; Roberts v. State, 68 Ala. 515; Larkin v. Baty, 111 Ala. 303, 18 So. 666; Andrews v. State, 174 Ala. 11, 56 So. 998, Ann. Cas. 1914B, 760, 16 C. J, page 1156, Sec. 2653; State v. Williams, 9 Houst. (Del.) 508, 18 A. 949; Traviss v. Commonwealth, 106 Pa. 597; Northcutt v. Jouett, 36 S.W. 179, 18 Ky. Law Rep. 327; 17 Am. Eng. Ency. Law (2d Ed.) notes 1 and 2, page 1163; O'Brian v. Commonwealth, 9 Bush (Ky.) 333, 15 Am. Rep. 715; Harris v. State, 177 Ala. 17, 59 So. 205; Smith v. State, 55 Ala. 1; Sowell v. Bank of Brewton, 119 Ala. 92, 24 So. 585, 50 L.R.A. (N.S.) 969; Brumfield v. State, 102 Miss. 610, 59 So. 849, 921. When life is taken by the intentional use of a deadly weapon, the blow or injury being aimed at the person slain, the act is either excusable homicide, voluntary manslaughter, or murder, and, where the undisputed evidence shows that the deceased was killed intentionally by the defendant with a deadly weapon and death ensued as the result thereof within a year and a day, the jury is not warranted in returning a verdict of assault and battery with a weapon. Such a verdict is contrary to the evidence in the case. Ex parte Brown, 65 Ala. 446; Collier v. State, 69 Ala. 247; McManus v. State, 36 Ala. 285; Mitchell v. State, 60 Ala. 26; Stoball v. State, 116 Ala. 454, 23 So. 162, 163; Compton v. State, 110 Ala. 24, 20 So. 119; Rice v. State, 20 Ala. App. 102, 101 So. 82; Salter v. State, 22 Ala. App. 86, 112 So. 538; Jeffries v. State, 23 Ala. App. 401, 126 So. 177; Lamar v. State, 153 Ga. 216, 111 S.E. 914 headnotes 2 and 3; State v. Lutterloh, 188 N.C. 412, 124 S.E. 752 headnote 4; State v. Walker, 133 Iowa 489, 110 N.W. 925 headnote 13; State v. Price, 7 Boyce 544, 108 A. 385 headnote 2; State v. Phillips, 65 Wn. 324, 118 P. 43 headnote 5; Frances v. State, 75 Tex. Cr. Rep. 362, 170 S.W. 779 headnote 3; Grant v. State, 56 Tex. Cr. Rep. 411, 120 S.W. 481 headnote 6; State v. Panetta, 85 W. Va. 212, 101 S.E. 360 headnote 4; State v. Schaeffer, 96 Ohio St. 215, 117 N.E. 220, L.R.A. 1918B, 945, Ann. Cas. 1918E, 1137 headnote 6; Bell v. State, 7 Ohio App. 185; Stallworth v. State, 155 Ala. 14, 46 So. 518 headnote 4; Campbell v. State, 13 Ala. App. 70, 69 So. 322 headnote 8; Bynum v. State, 8 Ala. App. 79, 62 So. 983.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
A jury may be discharged, with or without the consent of the parties, when in the opinion of the court there is a manifest necessity therefor. A defendant is not placed in double jeopardy by the discharge of a jury without his consent. Code 1923, §§ 8696, 8610 (4); Spelce v. State, 20 Ala. App. 412, 103 So. 694; Andrews v. State, 174 Ala. 11, 56 So. 998, Ann. Cas. 1914B, 760; Danzey v. State, 126 Ala. 15, 28 So. 697. Under an indictment for murder, a conviction for a lesser offense is generally proper. Self-defense was shown in this case. Jeffries v. State, 23 Ala. App. 401, 126 So. 177; Rice v. State, 20 Ala. App. 102, 101 So. 82.
It is first contended that the court erred in sustaining the state's demurrer to defendant's pleas of former jeopardy.
The rulings of the court on demurrer to plea 1 may be disposed of for the very obvious reason that the plea does not aver an abuse of the discretion placed in the trial judge by section 8696 of the Code of 1923. The statute fixes the reason for a discharge of the jury and of necessity leaves it to the opinion or discretion of the judge or court to determine whether or not the reason as fixed by law really exists. Andrews v. State, 174 Ala. 11, 56 So. 998, Ann. Cas. 1914B, 760.
As to defendant's plea 2, the rulings of the court on demurrer were also without error. The rule governing in matters of this kind is clearly and fully stated in Spelce v. State, 20 Ala. App. 412, 103 So. 694, in which case this court, speaking through Foster, J., cited instances in which trial courts were authorized to enter a mistrial over the objection of the defendant, to which we now add cases in which it is ascertained after trial begun that one of the jurors engaged on the trial is related within the inhibited degree to one of the parties or, as in this case, to the dead man.
Section 8696, supra, does not authorize the trial judge to fix the reason for the discharge, but to determine if the reason exists. When the reason is ascertained to exist, the trial judge determines that, based upon that fact, the ends of justice would be defeated if the trial proceeded to verdict, it becomes his highest duty to order a mistrial, and, when he so acts, appellate courts will not revise his judgment except in cases of abuse, plainly shown. Andrews v. State, supra.
The defendant now complains that he was convicted of assault and battery when, under the facts, he should have been convicted of manslaughter or acquitted of all criminality. In support of this contention, we are cited several authorities, among which is our own case of Jeffries v. State, 23 Ala. App. 401, 126 So. 177, in which Rice, J., has well stated the law of that case and of all similar cases. But the case at bar involves a very different principle. The act constituting manslaughter in the second degree is not necessarily included in a charge of homicide in the higher degree, while every case of manslaughter in the first degree ex necessitate includes an assault and battery, and, when so charged in an indictment, becomes merged into the higher degree. If however, the indictment charged an assault and battery, a trial on that charge would preclude a subsequent trial for a higher degree of the crime based upon the same facts. Storrs v. State, 129 Ala. 101, 29 So. 778; Buchanan v. State, 10 Ala. App. 103, 65 So. 205; Jackson v. State, 136 Ala. 96, 33 So. 888.
An indictment charging murder includes a charge of all lesser degrees of the crime, including assault and battery, and on the trial a defendant may be convicted of such degree of the crime as is necessarily included in the facts. Code 1923, § 8697; Beason v. State, 5 Ala. App. 103, 59 So. 712.
We find no error in the record, and the judgment is affirmed.
Affirmed.