This appeal is from a judgment of conviction of voluntary manslaughter on a first degree murder indictment tried in the Lauderdale Circuit Court. The jury set the punishment at ten years.
The questions for decision are: (1) Whether we, without any transcript of the evidence, can review the ruling of the trial judge that Patton Island, owned by the United States and which was the scene of the killing, was not within the exclusive legislative jurisdiction
Plea of Federal Jurisdiction
The first question is not one involving Congressional intent to preempt a species of crime but one of territorial as well as political sovereignty. Pollard's Lessee v. Hagen, 44 U.S. (3 How.) 212, 11 L.Ed. 565. Though the alleged crime may have been committed in a Federal enclave therein, Code 1940, T. 15, § 90, would not make the accused amenable to punishment by the laws of Alabama if the offense was "exclusively cognizable in the United States courts." Homicide, 18 U.S.C.A. §§ 1111 (b) and 1112(b), is a federal felony if committed on ceded lands. 18 U.S.C.A. § 7.
Cozart's counsel was confronted by our abbreviated form of indictment which omits any averment of the place of the homicide. If the geographic facts were undisputed, there would only be a question of law, that is, had Congress taken exclusive power to legislate over the territory in question.
The record, however, does not set out the evidence given on the issue made up by the defendant's special pleas.
The trial judge, in giving pretrial judgment for the State, recited:
Also, he referred to §§ 1505 and 1506
Before 1940 certain purposes of acquisition automatically carried implied Federal acceptance. Thus our Attorney General ruled that land for locks and dams came within the scope of §§ 1505 and 1506, supra. Quarterly Report of Attorney General, Vol. 23, p. 227.
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688,
Thus the United States, when acting through TVA, is acting primarily in the interests of navigation and flood control.
Without having before us the evidence on which the trial judge made his findings of jurisdictional facts, we cannot review his ruling. Beasley v. Beasley, 256 Ala. 647, 57 So.2d 69. The question as to jurisdiction of the subject matter, if it falls under State v. Blair, 238 Ala. 377, 191 So. 237, can be later raised either in a Federal court or by writ of error coram nobis in a state court. People v. Buffo, 318 Ill. 380, 149 N.E. 271; Spears v. State, 26 Ala.App. 376, 160 So. 727.
The deceased, Evywon Curtis, and the defendant had been camping out on Patton Island in the Tennessee River. On a Saturday night a group of insular campers were fishing, frying fish and drinking whiskey, off and on all night.
Sunday Cozart went ashore and came back with a boatman. Finding Evywon had gone to a rock spring on the Colbert County bank with Gene Berry, Cozart had the boatman take him there.
On Berry's leaving the spring, the boatman ferried Evywon and Cozart back to Patton Island, and on being paid shoved off. Evywon and Cozart exchanged angry words.
Witnesses saw Cozart bring Evywon up the bank dragging her. Some testimony was that he was pulling her by the hair though it is not clear as to whether or not he had hold of any of the rest of her as he pulled her. Certainly she seems to have been at least partly walking even though pulled.
With Evywon protesting and asking to be turned loose, Cozart brought her to a spot between two cots, then he slammed her on the ground. One witness said he started stomping her: she saw his foot in the air.
Another witness stated Cozart slung the deceased to the ground. He hit her with, as the solicitor put it in a question, "a great deal of force." This witness turned her back, but heard three or four loud "licks." Some of the other campers slept through most of the attack.
The deceased went silent. Cozart and some others poured water on her, tried resuscitation, then took her to the Florence Boat Dock, thence to Coffee Memorial Hospital where she was found to be dead.
William T. McVay, an assistant State toxicologist, did an autopsy. He testified in part:
The toxicologist stated the deceased's death resulted from the ruptured right ventricle which he said was caused by "a forceful and sudden bowing of the spinal column."
This, McVay said, could have been consistent with a man forcefully kicking her in the small of the back with his shoe on. The force of such a kick would have had to have been sufficient to arch the spinal column "enough so that the round ligament of the liver and compress on the liver itself and lacerate it and catch the heart between the breast bone and spinal column to give it enough compression to rupture the heart."
In addition to the consistency with a kick from a man's shod foot, McVay was of the opinion that the rupture could have consistently resulted from a forceful blow (as above qualified) delivered by (1) a blunt instrument if "blunt enough," or (2) a fist.
The indictment was in six counts, each alleging that Cozart, with the required mens rea, killed Evywon Reese Curtis. Count 1 alleged he did so by stamping with his foot; count 2, by kicking with his foot; count 3, by striking with his fist; count 4, by striking with some blunt instrument to the grand jury unknown; count 5, with some weapon to the grand jury unknown; and count 6, by some means to the grand jury unknown.
The jury's finding was guilty of manslaughter in the first degree and set Cozart's punishment at ten years imprisonment in the penitentiary.
The grand jury may aver the same killing in several counts to meet unexpected aspects of the same transaction as the evidence unfolds. Nevertheless there is but one act—murder or manslaughter. Nixon v. State, 268 Ala. 101, 105 So.2d 349.
The means of murder (as well as of other crimes) can be laid alternatively.
This case hinges, however, not on a ruling on demurrer but from the trial judge's refusing the two following charges requested by the defendant before the jury retired:
The form of the "belief" charge to pose acquittal to the jury was expressly approved in Green v. State, 68 Ala. 539. There the Court, per Brickell, C. J., stated:
Hence, we are presented with the office of Code 1940, T. 7, § 270, which reads:
In Rowe v. State, 243 Ala. 618, 11 So.2d 749, the trial judge in his oral charge said, among other things, "* * * frankly, I charge you, there is no evidence of insanity in this case." This was held not to breach § 270, supra, as an unsolicited comment of the court on evidence because there was no evidence. The issue of insanity was not in dispute because of the lack of proof altogether.
All there is to support counts 4 and 5 are the bare results, i. e., the ruptured ventricle of the deceased's heart.
There is no evidence of Cozart using or having available for his use either any blunt instrument or any weapon unless there is an assumption that he had shoes on while he was stomping or kicking her.
The means of murder is not of the essence since it is not an "element." Gaines v. State, 146 Ala. 16, 41 So. 865. Nevertheless, in adjectival law, our Code (form 79, T. 15, § 259) calls for a description of the means used by the defendant to kill, as by shooting the deceased with a pistol or a gun, or by striking him with an iron weight.
Leaving out the means of homicide is a demurrable defect. Gaines v. State, supra; Langham v. State, 243 Ala. 564, 11 So.2d 131. As was done here, the grand jury may aver that the means were unknown to them. T. 15, § 242.
In Langham v. State, supra, error rested in denying a defense motion to exclude the evidence. The State failed to prove either of the two good counts.
Blackstone, iv Comm. 196, of the mode of killing in murder, says:
Professor Beale, in Criminal Pleading and Practice, Ch. XXIII, Indictment for Homicide, § 188, adds:
The Attorney General relies on T. 15, § 242, supra, and McDonald v. State, 241 Ala. 172, 1 So.2d 658. Analytically, however, McDonald supports the defendant as an application of T. 7, § 270, supra.
The McDonald record contains a six count indictment for killing the deceased by (1) an ax; (2) a gun or pistol; (3) a blunt instrument; (4) setting a fire; (5) some weapon; and (6) by some means unknown.
McDonald's bill of exceptions shows that the deceased's body was found in a burning building. The skull was burst open, nearby were two double bitted axes and an iron rod. An accomplice of the defendant had gone down to the building with a pistol. Afterwards the fire started up. The defendant and accomplice had bought ten gallons of gasoline.
Hence, any one or more of the means charged to McDonald could have contributed to the death. Moreover, "inference" means a degree of conviction coming from proof of some fact. Inference must have a palpable beginning.
As we view the evidence most favorable to the State, if Cozart's acts contributed to the death of the deceased, these acts must fall under: (1) slamming (or slinging) her to the ground, (2) stomping (or stamping) her, i. e., kicking down with the sole of the foot, (3) kicking her, or (4) administering loud licks.
When tested, count 4, striking with a blunt instrument, stands as a separate indictment. Webster's International Dictionary (2d Ed.) defines "blunt" as follows:
Under synonyms Webster states:
Webster defines "instrument" as:
See Williams v. State, 144 Ala. 14, 40 So. 405.
Certainly no witness saw Cozart have anything in his hand either as a club or a missile. McVay's expert testimony pointed to a number of different possible causes without according priority one over the other.
Concededly, a shoe can be a weapon under given conditions. Goss v. State, 61 Ga.App. 621, 7 S.E.2d 87. Whether Cozart had on shoes or not does not appear. Under Rager v. State, 38 Ala.App. 225, 81 So.2d 923, the use of a "shoe" in an assault charge does not import any of the weapons set forth in Code 1940, T. 14, § 34.
However, when the quo modo is charged, as here, killing by kicking or stamping, then whether the assailant's foot is shod or not goes only to show the nature of the blow inflicted. If the shoe, however, is
Had there been evidence that Cozart's shoes, if any, were "blunt" so as to connect up with McVay's theory of a blow (1) forcefully administered, and (2) with a "blunt enough" instrument, this would have been support of his stamping (count 1), kicking (count 2), or "striking with some blunt instrument (count 4) worn on his foot."
But we are not aware of any evidence that directly states what sort of shoes Cozart had on, if he wore any. Thus unaided, we could not say tennis sneakers or moccasins would be "blunt enough" within McVay's specification.
Therefore, since there were express charges against him of assault with his feet in counts 1 and 2, we cannot assign kicking or stamping as the equivalent under the absence of evidence of something "blunt enough" used by Cozart to fall under count 4.
Count 5 is even clearer to reversal. Webster, supra, defines "weapon":
Cyclopedic Law Dictionary (3d Ed.), p. 1173, defines "weapon" as:
Moreover, the mere showing of the use of a fist does not make out use of a weapon. Corcoran v. State, 18 Ala.App. 202, 89 So. 835; Bean v. State, 77 Okl.Cr. 73, 138 P.2d 563; State v. Rizor, 353 Mo. 368, 182 S.W.2d 525.
Finally, we have considered the doctrine of looking to the result to find the cause. This is permissible reasoning if it encompasses the agency of the defendant. Much as in res ipsa loquitur, there must be a showing of the defendant having (in criminal law) some control of the deleterious substance. See Bluth v. State, 38 Ala.App. 692, 92 So.2d 685.
Here the defense adduced testimony which, if credited, could ascribe the death to the deceased's falling, in one instance, from a small bluff; in another, into thwarts of a boat; and again, over some tree roots and stumps at the river's edge. Coupled with her undisputed drinking, as a matter of law, we cannot say the evidence before the jury was undisputed as to Cozart being the agent of death.
Though we treat murder indictments as one transaction, yet each count must stand or fall on its own merits. Not only is this the rule on demurrer but it also prevails when test is made after the proof is in and the defense asks that a count be charged out.
Here there was no evidence to support counts 4 and 5. The refusal of charges 23 and 24 was error. Hawes v. State, 216 Ala. 151, 112 So. 761; Jones v. State, 236 Ala. 30, 182 So. 404; Gayden v. State, 38 Ala. App. 39, 80 So.2d 495 (aff'd 262 Ala. 468, 80 So.2d 501); Jackson v. State, 33 Ala. App. 42, 31 So.2d 514; Moore v. State, 35 Ala.App. 160, 44 So.2d 789; Smith v. State, 39 Ala.App. 673, 107 So.2d 575.
Nor does Supreme Court Rule 45 avoid reversal here. In a civil action, Jordan v. Henderson, 258 Ala. 419, 63 So.2d 379, the court, per Merrill, J., says:
Accordingly, the court's refusal to give charges 23 and 24 constitutes error to the prejudice of the defendant, and requires a reversal of the judgment below.
Reversed and remanded.
§ 1506: "The jurisdiction ceded shall continue during the term the United States of America shall remain owner of the land so purchased, and shall be exclusive for all purposes except that the service of process issued out of the courts of the state of Alabama, shall not be prevented therein."