Opinion
3 Div. 818.
January 16, 1940. Rehearing Denied February 27, 1940.
Appeal from Circuit Court, Escambia County; F. W. Hare, Judge.
Charlie Howard was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Howard v. State, 239 Ala. 274, 194 So. 857.
The statement of facts as set out in the brief for appellant is as follows:
"According to the indictment record in the office of the Clerk of the Circuit Court of Escambia County, the defendant, Charlie Howard, was indicted for the offense of Murder in the First Degree at the Fall Term of the Circuit Court in the year 1914 (Tr. 17, 18). He was charged with killing one Jim Andrews, alias Andress, by shooting him with a pistol. The killing occurred on Monday, September 7, 1914 and Andrews died in a Century, Florida, hospital on Wednesday morning following.
"The defendant was arraigned on October 3, 1934 and was tried under the said 1914 indictment on March 17, 1937. He was convicted at said trial of Manslaughter in the First Degree and his punishment fixed at four years imprisonment in the penitentiary (Tr. 22, 23). A motion for a new trial was duly filed and a new trial was granted by order of the Court dated April 20, 1937 and the Clerk was directed to enter said prosecution on the docket for retrial (Tr. 25, 26). At said original trial the defendant attacked the indictment of 1914 by motion to quash (Tr. 19-21). The motion was overruled by the Court and the defendant thereupon filed his demurrers to said indictment which were also overruled by the Court. The defendant then filed special pleas in bar to which the solicitor interposed demurrers and which demurrers were sustained by the Court. It might be here stated, as a matter of history, that the indictment was attacked on the ground that it was not a valid indictment in that the record of the Court shows that the foreman of the Grand Jury appointed by the Court did not sign said indictment but that the name of another member of the Grand Jury was signed to the instrument as the foreman. The point was also made in the motion and in the pleas that the prosecution had been abandoned by the State and that it was stale.
"After the motion for a new trial had been granted and said original prosecution re-entered upon the docket and while the same was then pending (See Certificate of Clerk, Tr. 26), the Grand Jury returned a new indictment charging the defendant with Manslaughter in the First Degree. This indictment was returned into Court on October 7, 1937 (Tr. 1). The defendant was brought to trial on this new indictment on October 19, 1938. At this second trial (under the new indictment) the defendant interposed his motion to dismiss the prosecution (Tr. 3) which motion was overruled he then filed a motion to quash the indictment (Tr. 3, 4) which motion was also overruled, Special pleas (Tr. 5, 6) were then filed and the solicitor thereupon interposed demurrers to said pleas (Tr. 6, 7) which demurrers were sustained by the Court. On this second trial the jury returned a verdict of guilty and fixed his punishment at two years imprisonment in the penitentiary. The defendant gave notice of an appeal and timely filed his motion for a new trial which motion was overruled and denied by the Court (Tr. 14-16; Tr. 72-74).
"It was the theory of the State that the defendant shot the deceased without excuse or provocation (See Dying Declaration Tr. 39-41; Tr. 45, 46; Testimony of Ike Dowell Tr. 30-32; Testimony of Elbert Gray Tr. 34-38). On the other hand, it is the contention of the defendant that the homicide was justifiable and that the killing was done in self-defense; that on the day before the killing the defendant found his wife and the deceased in a compromising position in the defendant's bedroom; that at that time the deceased assaulted and severely beat the defendant; that the next morning the deceased accosted the defendant at a point along the railroad track at the village of Foshee and renewed the difficulty, and in defense of his own life the defendant did the shooting (See testimony of the defendant Tr. 60-66; Testimony of Berry Odom Tr. 47-51; Testimony of Allen Coursey Tr. 51-54). It is a further contention of the defendant that the purported dying declaration was inadmissible and incompetent testimony in that the deceased was continuously under the influence of narcotics or opiates administered by his physician to alleviate his pain and suffering; that said alleged dying declaration was contradicted by a statement made by the deceased shortly after he was shot and before he was carried to the hospital.
"In addition to the foregoing, the defendant earnestly insists that the said prosecution had been discontinued by virtue of long inaction and want of attention on the part of the State. Also, that the second indictment and the trial, thereunder, were invalid and void by reason of the fact that he had been brought to trial in 1937 on the original indictment which was returned into Court October, 1914; that said original indictment had been held to be valid by the trial Court and a new trial granted him and that said prosecution founded upon said original indictment had been ordered to be re-entered upon the docket, which order had been duly complied with by the Clerk and that said original prosecution was then pending on the docket of the Court at the time said second indictment was returned into Court, and that said original prosecution remained as a pending prosecution at the time the defendant was tried and convicted under said second indictment which was returned into Court in 1937."
Dr. J. S. Turberville, a witness for the State, testified that he treated deceased in September, 1914, and described his wounds; that "prior to his death I (the witness) advised Mr. Andress that he would not be able to recover from his wounds". Witness was then asked: "Did you tell him if he had any statement to make that he had better tell how it happened?" Defendant's objection being overruled the witness answered, "Yes, sir".
State's witness L. B. Biggs testified that he saw deceased in Dr. Turberville's hospital on Tuesday afternoon, and that deceased died Wednesday morning; that deceased then said to witness: " 'There is no chance for me, I have got to die.' Yes, sir he told me that there wasn't any chance for him to get well and that he was going to die." Witness was then asked: "Did he after telling you that, tell you and Mrs. Homer Dees how this transaction occurred?" and answered "He did". Witness was then asked to state what deceased had said as to how the transaction occurred. Defendant's objection was overruled and witness testified as to the statement made by deceased. On further examination of this witness it appeared that this first statement was not transcribed, but that witness went and got Mr. Jones to take down the statement and about two hours later, deceased made a statement which was taken down in writing; that the statement, the same in content as the first made by deceased to witness and Mrs. Dees, was taken down and signed by deceased. Defendant's motion to exclude the testimony of this witness as to the dying declaration, was overruled.
Refused charged one was the affirmative charge for defendant.
H. C. Rankin, of Brewton, for appellant.
The omission of any action by the State in the indictment returned in 1914 operated as a discontinuance. Drinkard v. State, 20 Ala. 9; 16 C.J. 438; Porter v. Watkins, 196 Ala. 333, 71 So. 687. There was no warrant of law for the procedure followed in this case; the finding of a new indictment and trial while the original valid indictment was still pending. Code, 1923, § 4554, 4551; Coleman v. State, 71 Ala. 312; McCellan v. State, 121 Ala. 18, 25 So. 725; McIntyre v. State, 55 Ala. 167; Rogers v. State, 126 Ala. 40, 28 So. 619; Davis v. State, 145 Ala. 69, 40 So. 663; DeBardeleben v. State, 16 Ala. App. 367, 77 So. 979. It was error to admit the purported dying declaration as testified by Witness Biggs. This was secondary evidence. The written statement should have been introduced or its absence accounted for. Kirby v. State, 151 Ala. 66, 44 So. 38; Roberson v. State, 21 Ala. App. 196, 106 So. 696.
Thos. S. Lawson, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen., for the State.
There was no error in overruling defendant's motion to dismiss the prosecution and quash the indictment. Code 1923, § 4928; Tolbert v. State, 28 Ala. App. 209, 181 So. 800, Id., 236 Ala. 221, 181 So. 800; Treadaway v. State, 18 Ala. App. 409, 92 So. 529; Gibson v. State, 15 Ala. App. 12, 72 So. 569. Under the facts in this case there was no former jeopardy. Orr v. State, 236 Ala. 462, 183 So. 445; Pope v. State, 228 Ala. 609, 155 So. 79; Andrews v. State, 174 Ala. 11, 56 So. 998, Ann.Cas. 1914B, 760. It was proper to admit testimony of threats made by defendant against the deceased. Pitts v. State, 140 Ala. 70, 37 So. 101; Nickerson v. State, 205 Ala. 684, 88 So. 905; Grooms v. State, 228 Ala. 133, 152 So. 455. Proper predicate was laid for the dying declaration, and same was admitted without error. Pressley v. State, 166 Ala. 17, 52 So. 337. The affirmative charge was properly refused, there being substantial evidence tending to prove all elements of the offense. Ex parte Grimmett, 228 Ala. 1, 152 So. 263.
The attorney for appellant, in his brief filed in this case, has fully set out a statement of the facts, which we here adopt as a basis for the opinion which will be hereinafter rendered.
Reduced to its last analysis, there were two indictments pending against the defendant at the time of the trial and judgment, from which this appeal is taken. One of the indictments was returned into court at the Fall Term of the Circuit Court of Escambia County in the year 1914. The indictment upon which this trial was had was returned into the same court at its Fall Term, 1937.
The pendency of the two indictments charging the same offense is no ground for abatement of either prosecution. The State may elect to proceed upon either indictment. Tolbert v. State, 28 Ala. App. 209, 181 So. 800, certiorari denied, Id., 236 Ala. 221, 181 So. 800.
In a case similar to the one at Bar this Court said: "Granting that both cases were one and the same and both charged a violation of the same state law, they were at the time of this trial both pending and undisposed of in the same court and before the same judge; the one instituted in that court by the state and the other brought there by the appeal of the defendant thereby constituting a waiver of any jeopardy by reason of the original trial of defendant before the recorder. Both were pending for trial on the merits, and the state could elect as to which to try, and if both were charges brought by the state, as alleged in the plea, and were the same, the conviction in one would be a bar to the other, but the plea is not good in abatement, and was subject to the demurrer." Treadaway v. State, 18 Ala. App. 409, 92 So. 529, 530.
Insistence is here made that the long delay on the part of the State in bringing the defendant to trial on the indictment returned at the Fall Term, 1914, amounts to a discontinuance, and for that reason the second indictment should be abated. Whatever force there might be in this contention as applied to the indictment, charging the defendant with murder, returned at the October Term, 1914, such contention cannot apply to the indictment returned in 1937, upon which the trial was had. The 1937 indictment is not connected with the 1914 indictment, and it is not necessary that it should be connected, for the reason that under Section 4928 of the Code of 1923, it is provided: "There is no limitation of time within which a prosecution must be commenced for any public offense which may be punished capitally, or for murder in the second degree, manslaughter in the first degree, arson, forgery, counterfeiting, or any offense expressly punishable, under the provisions of this Code, as forgery or counterfeiting."
The trial court did not err in overruling the defendant's motion to dismiss the prosecution under the 1937 indictment.
It is undoubtedly the law that a criminal as well as a civil suit may be discontinued. A discontinuance is a gap or a chasm in the proceedings after the suit is pending. Any claim to a discontinuance in the case at Bar would only apply to the proceeding begun by indictment in 1914, which was, and is, a separate proceeding from the indictment returned in October, 1937. Ex parte Hall, 47 Ala. 675.
Under the facts as set out in appellant's brief there was no jeopardy attached to the defendant by a former trial on the indictment returned in 1914. A conviction had been had, and this conviction had been set aside upon the motion of the defendant. Upon the granting of this motion the cause was again restored to the docket and no jeopardy had attached. Orr v. State, 236 Ala. 462, 183 So. 445. For this reason the court was without error in sustaining the State's demurrer to the defendant's plea of former jeopardy.
The action of the defendant in moving and having the court on his motion to set aside the judgment of conviction based upon the indictment of 1914 was a waiver on his part of any jeopardy, which otherwise might have attached. Stinson v. State, 3 Ala. App. 74, 57 So. 509; Pendergrass v. State, 18 Ala. App. 465, 93 So. 44; Biggers v. State, 20 Ala. App. 632, 104 So. 681.
The testimony of Dr. Turberville, relative to the dying declaration of the deceased, was admissible as tending to prove a predicate necessary to be established in order to authorize proof of the statement made by the deceased just prior to his death.
Under the evidence in the case, a proper predicate was laid for the admission of the dying declaration of the deceased; and, as testified to by the witness, two statements were made. The first was not reduced to writing; the second having been reduced to writing was lost, or destroyed, and its absence properly accounted for. Testimony as to both statements were admissible.
The testimony being in conflict, charge one was properly refused. Other charges requested by the defendant, in writing, and refused by the court, either did not state correct propositions of law or they were amply covered by the court's full and able oral charge.
Evidence of threats made by the defendant against the deceased on the night prior to the fatal difficulty were admissible in evidence. Myers v. State, 62 Ala. 599; Davis v. State, 126 Ala. 44, 28 So. 617.
We find no error in this record, and the judgment is affirmed.
Affirmed.
BRICKEN, P. J., not sitting.