Opinion
1 Div. 393.
April 9, 1974. Rehearing Denied May 21, 1974.
Appeal from the Circuit Court of Mobile County, Ferrill D. McRae, J.
David L. Barnett, Mobile, for appellant.
When the cause of death in a homicide is accidental the State cannot take the case to the jury and the defendant's motion to exclude must be granted. Albright v. State, 50 Ala. App. 480, 280 So.2d 186, Id. 291 Ala. 771, 280 So.2d 191; Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464; Duncan v. State, 30 Ala. App. 602, 6 So.2d 450, Id. 242 Ala. 329, 6 So.2d 454; Gibson v. Commonwealth, 106 Ky. 360, 50 S.W. 532; Pallis v. State, 123 Ala. 12, 26 So. 330; Singleton v. State, 33 Ala. App. 536, 35 So.2d 375; State v. Keeble, 49 S.D. 456, 207 N.W. 456; 13 Ala. Law Review 147 "Proof of Corpus Delicti in Ala.," C.J.S. Homicide § 89; 7 Wigmore on Evidence, Sec. 2072 (3rd Ed. 1940). An indictment is defective which fails to allege the relationship of the parties or the quo modo of the offense when it is a homicide of omission to act. Albright v. State, 50 Ala. App. 480, 280 So.2d 186, Id. 291 Ala. 771, 280 So.2d 191; Cozart v. State, 42 Ala. App. 535, 171 So.2d 77; Hornsby v. State, 94 Ala. 55, 10 So. 522; Code of Ala., 1940, Title 15, § 241, 242; Wilson v. State, 243 Ala. 1, 8 So.2d 422.
William J. Baxley, Atty. Gen., and Rosa Gunter Hamlett, Asst. Atty. Gen., for the State.
An indictment charging that the defendant unlawfully and with malice aforethought, killed an infant child by exposing him to the cold and weather sufficiently alleges the means or quo modo of the killing so as to be good against demurrer. Tempe v. State, 40 Ala. 350; Code of Alabama 1940, Recompiled 1958, Title 15, Sec. 259 "Form 79"; Black's Law Dictionary, 4th Ed. Rev. 1968; Wharton's Criminal Law, 12 Ed. Sec. 481. An indictment charging that the defendant unlawfully and with malice aforethought killed an infant child by abandoning him on the side of a public road in the nighttime, wilfully permitting him to be exposed to the elements sufficiently alleges both the means of the killing and the duty to protect so as to be good against demurrer. Code of Alabama, 1940, Recompiled 1958, Title 15, Section 259 "Form 79"; Black's Law Dictionary, 4 Ed. Rev. 1968. An indictment charging that the defendant unlawfully and with malice aforethought, killed an infant child, by abandoning him on the side of a public road, refusing to care for him and refusing to protect him, and wilfully permitting him to be exposed to the elements sufficiently charges the means of killing and a duty to protect as to be good against demurrer. Tempe v. State, 40 Ala. 350; Code of Alabama 1940, Recompiled 1958, Title 15, Section 259 "Form 79"; Black's Law Dictionary, 4th Ed. Rev. 1968.
Appellant was convicted of murder in the second degree and sentenced to twenty-five (25) years in the penitentiary. At arraignment, attended by court-appointed counsel, she pleaded not guilty. After conviction she sought and obtained a free transcript and one of her trial lawyers was appointed to represent her on appeal.
Many issues are presented on this appeal but in our view, it is unnecessary to treat any of them except the sufficiency vel non of the indictment in the light of an apt ground of demurrer. For the same reason we do not deem it necessary to set forth the horrible facts and circumstances surrounding the death of an eighteen-month old helpless infant, who was abandoned on the Mobile Causeway and left exposed to the inclemency of variable weather conditions. Suffice it to say that death resulted from the actions of a mother possessed of a cold stone heart and completely devoid of the milk of human kindness.
The five-count indictment in this case is word for word like the five-count indictment in the companion case of Albright v. State, 50 Ala. App. 480, 280 So.2d 186, certiorari denied 291 Ala. 771, 280 So.2d 191, save and except the name of the defendant.
In Albright, supra, we held the indictment was subject to the demurrer filed in the cause and reversed the judgment of conviction.
The Attorney General, through one of his assistants, in brief, strongly contends this Court erred in its holding in Albright and claims that the indictment in this case is sufficient. Well, we are not so persuaded. Albright was by a unanimous court and there was no dissenting vote in the denial of the state's petition for writ of certiorari. We, therefore, plant ourselves squarely on our decision in Albright and reverse and remand this case for another trial because the court below failed to sustain the demurrer to the indictment.
Reversed and remanded.
All the Judges concur.