Turner v. State , 29 Ala. App. 13 ( 1939 )

Appellant tried and convicted as charged, upon an indictment for the offense of assault with intent to murder. Specifically, that he unlawfully and with malice aforethought did assault A. G. May with intent to murder him, etc.

The judgment entry discloses that upon arraignment, in answer to the indictment, the defendant interposed his plea of "not guilty." As stated, the trial in the lower court resulted in his conviction, the jury returned the verdict, towit: "We the jury find the defendant guilty as charged." Whereupon, as the law requires, the court pronounced and entered judgment of conviction and fixed the punishment at imprisonment in the penitentiary for not less than four years, nor more than five years. From said judgment of conviction this appeal was taken.

In briefs of counsel for appellant, and throughout the trial, as shown by the bill of exceptions, it appears the question of the insanity of the accused was injected into the trial, and here, upon appeal, numerous insistences of error on this question are urged in order to effect a reversal.

Under the statute, and decisions of the appellate courts of this State, we are without authority to consider these questions, as it affirmatively appears from the record, no special plea of not guilty by reason of insanity was interposed upon arraignment, nor at any other period of the trial. Section 4573 of the Code 1923 in this connection provides: "When the defense of insanity is set up in any criminal prosecution it must be by special plea, interposed at the time of arraignment and entered of record upon the docket of the court, which in substance shall be, 'not guilty by reason of insanity.' Such plea shall not preclude the usual plea of the general issue, which shall not, however, put in issue the question of the irresponsibility of the accused by reason of this alleged insanity, this question being triable only under the special plea."

We quote from our case of Pate v. State, 19 Ala. App. 243,96 So. 649, as follows: "The judgment contained in this record recites that the defendant, in answer to the indictment, 'says he is not guilty.' It not being shown in the judgment entry that a plea of 'not guilty by reason of insanity' was interposed, the questions presented and insisted upon, which relate to the alleged insanity of defendant, cannot be considered, as the law requires this character of defense to be specially pleaded. Code 1907, § 7176. It is true that certain matters contained in the bill of exceptions might indicate that this special plea was interposed, but the recitals in the judgment do not show that such plea was entered, and the judgment itself must govern on this question. If, as a matter of fact, such special plea was made, it was the duty of the appellant to have had this shown in the judgment, before allowing or consenting to a submission of the cause in this court. The statute expressly provides that the plea of general issue, or not guilty, shall not put in issue the question of the irresponsibility of the accused by reason of alleged insanity, as this question is triable only under the special plea."

The foregoing authority is conclusive of this question, the case at bar being identical, on the point, with the Pate case, supra. See, also, Baker v. State, 209 Ala. 142, 145,95 So. 467; Morrell v. State, 136 Ala. 44, 34 So. 208); Rohn v. State,186 Ala. 5, 65 So. 42; Walker v. State, 91 Ala. 76, 9 So. 87; Bishop v. State, 17 Ala. App. 343, 84 So. 784); Andrews v. State, 17 Ala. App. 456, 85 So. 840; Parrish v. State, 139 Ala. 16,36 So. 1012; McGee v. State, 20 Ala. App. 221, 101 So. 321.

From the foregoing and numerous other decisions of like import, unnecessary to designate, it is clear we are not to consider any point of decision bearing upon the mental condition of the accused in this case.

Appellant presents numerous other insistences of error. These we have carefully examined and considered, and as to the exceptions reserved, to the court's rulings upon the admission of testimony, we find no error to justify an order of reversal in this case. We deem it unnecessary to discuss in detail these numerous rulings complained of and refrain from so doing.

Without dispute, the evidence tended to show that this appellant, in close proximity, shot and seriously wounded A. G. May with a shot gun. The State contended, and offered testimony in support thereof, that the assault was wholly unprovoked and without justification and was committed unlawfully and with malice aforethought as charged in the indictment. There was some testimony that the defendant had threatened to get May sooner or later. Said threats were alleged to have been made a short time before the shooting complained of.

Dr. O. N. Edge testified as follows: "I am a regularly licensed practicing physician here in the City of Troy. I know one Mr. A. G. May. I don't remember just when it was, but sometime in the summer I treated him for a gunshot wound in the abdomen. He had a wound made by a shotgun, I think; it came kinder from the left, anyway the shot went in the liver, going from the left to the right, and he had a wound in the liver. Several shot had gone in it. It looked like a pretty good load of bird, or squirrel shot, something like that. He did not make one big hole, the shot were kinder scattered; there were several went into it. As to his condition and what we had to do on him, — we operated on him and packed the liver to stop the bleeding. He was critically injured. He had blood transfusions. I don't remember how many blood transfusions he had, but he was critically ill; he had blood transfusions several times. He stayed in the hospital two or three weeks, I don't remember exactly. I say we had to pack his liver to stop its bleeding. He had several holes in his liver where it was torn, and its tissue is soft, you know, tender, and we had to pack them to stop the bleeding. He was suffering from loss of blood when I first saw him; he was critically injured and ill."

The defendant introduced his brother Tee Turner as a witness, who testified he saw the shooting, but was about 115 or 120 steps away; that he could not hear what was said, but just before his brother fired the shot, he "saw May reach his hand this way (indicating) in his bosom." That was just before the time the shot was fired. This testimony relative to an alleged overt act upon the part of May was offered in support of defendant under self defense.

The court properly submitted the case to the jury. In this connection the court delivered a most excellent oral charge, full, explicit and thoroughly fair to the accused. In addition to said oral charge, the court gave at the request of defendant about twenty special written charges. In the oral charge, and given charges, every pertinent proposition of law raised by the charges refused to defendant, which contained correct statements of the law, were fairly and substantially covered. This being true, the court was under no duty to give said charges.

The alleged portion of the argument of Solicitor to which objection was made related, as hereinabove held, to a matter wholly foreign to the issues upon this trial. Such argument was innocuous and therefore without injury to the substantial rights of the defendant. Supreme Court Rule 45.

Upon the hearing of the motion for a new trial the defendant merely offered in support thereof the evidence adduced upon the trial of the case. The amendment to the motion was based on grounds in support of which no evidence was offered.

The action of the court in overruling and denying the motion for a new trial was without error. The exception in this connection is not well taken.

Finding no reversible error in any ruling of the court, and the record being regular and without error apparent thereon, the judgment of conviction from which this appeal was taken must be and is affirmed.

Affirmed.

On Rehearing.