Johnson v. State

CATES, Judge

(concurring specially).

I concur in the judgment of affirmance.

Nevertheless, in all fairness to the defendant, should his counsel consider applying for a review of our decision, I wish to express two thoughts which occur to me.

I.

As to the issue of insanity, the trial judge, in effect, gave a directed verdict in favor of the State which was the ad hoc defendant on that issue.

If the scintilla rule were to govern as to this issue of not guilty by reason of insanity, then I think there was sufficient evidence here to invoke the scintilla rule. Hence, technically the directed verdict against insanity would have been, as a matter of formality, erroneous.

However, even assuming that the scintilla rule were to apply, then because of the paucity of evidence as to Johnson’s abnormal conduct, I believe that no reasonable jury, had the issue of insanity been left with them under a proper charge as to the law of that defense, would have come to any other or different verdict from that which it reached in this case.

I must confess, however, that this is a statement of the harmless error rule found in jurisdictions other than ours, e. g., Mississippi and Utah. 1 Probably, under the cautious attitude of our Supreme Court, it leaves too much to the trial judge’s discretion. This even though Code 1940, T. 15, § 389, is stricter than Supreme Court Rule 45.

*230 ... Therefore, I think it necessary to extend this discussion to show my reasons for believing that the scintilla rule does not apply as to the degree of proof required on the issue of the statutory plea of not guilty by reason of insanity.

II.

After Parsons v. State, 81 Ala. 577 , 2 So. 854 (hn. 4), wherein it was held that insanity “must be established to the satisfaction of the jury by a preponderance of the evidence,” the Legislature, by Act 429, February 27, 1889, altered this statement of the degree of proof. Thus, Code 1940, T. 15, § 422, last sentence, taken from § 1 of Act 429, supra, provides:

“ * * * The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.” (Italics supplied.)

The word “clearly” to me means that the scintilla rule does not obtain under this statute.. I find nothing in the opinion in Thomas v. State, 207 Ala. 244 , 92 So. 244 , to contradict this.

; The' opinion in Mizell v. State, 184 Ala. 16 , 63 So. 1000 , uses, in charge 1, “If, by a preponderance of the evidence, the jury are satisfied. * * * ”

In Brown v. State, 33 Ala.App. 97 , 31 So.2d 670 , refusal of Charge A 6 (see 33 Ala.App. 100 -101) was the basis for reversal in the Court of Appeals (see hn. 20). The Supreme Court, 249 Ala. 5 , 31 So.2d 681 (hn. 4), perceiving a parenthetical expression, overruled Mizell v. State without an epitaph. See Farley v. State, 34 Ala. App. 54 , 37 So.2d 434 .

Neither Knight v. State, 273 Ala. 480 , 142 So.2d 899 , nor Walker v. State, 269 Ala. 555 , 114 So.2d 402 , seem to come to grips with the effect of the addition-of the word “clearly” in § 422, supra, as to whether or not it supersedes the ordinary scintilla rule in civil cases where the degree of proof is to the reasonable satisfaction of the jury based upon a consideration of all the evidence.

There is one further philosophical diffi? culty which arises. We are here dealing with two aspects of the mental element of crime.

The aspect other than insanity comes under the issue of not guilty of an indictment of assault with intent to murder. This charge requires, as one of the elements which the prosecution must prove beyond a reasonable doubt, that Johnson intended to kill a rational human being with malice aforethought.

Malice aforethought is no mere cliche. It presupposes a competent mind capable of thinking, entertaining and retaining an evil disposition which would compass the death of another human being by a thought out act.

The period of time is unimportant. In the mechanics of establishing malice, the use of a deadly weapon can create the evidentiary presumption that all of the mental processes leading up to a “condition of malice aforethought” have occurred, unless the evidence itself refutes such a conclusion on the part of the trier of fact.

When a jury is told that there is no evidence of insanity, they may leap to the inference that there is evidence of that mental capacity which would (and did) entertain malice aforethought. Consequently, the trial judge’s direction of such a verdict under § 422, supra, should also be usually accompanied by a cautionary instruction to the effect that, even so, the burden remains unvaryingly on the State to prove the defendant’s guilt by the evidence beyond a reasonable doubt as to the commission of the central crime.

. Under Ex parte Foshee, 246 Ala. 604 , 21 So.2d 827 . I consider Supreme Court Rule 45 is invalid to the extent of its conflict 'with the statute, Code 1940, T. 15, § 389.

A sampling from the Southeastern states shows: Florida: F.S. Ch. 924.33; Cornelius v. State, 49 So.2d 332 . Kentucky: Rule 61, “substantial justice.” Louisiana: R.S. 15:557, “unless * * * miscarriage of justice.” State v. Clifton, 247 La. 495 , 172 So.2d 657, 659 . Mississippi: Rule 11, 215 Miss. 601 , “miscarriage of justice.” Reed v. State, 237 Miss. 23 , 112 So.2d 533 , “An impartial jury * * * could not reach a different result.” North Carolina: Of. Civil case GSA § 1-165, § 1-297. State v. Hammonds, 241 N.C. 226 , 85 S.E.2d 133 . South Carolina: State v. Reggen, 214 S.C. 370 , 52 S.E.2d 708 . Tennessee: Tenn.Code Anno. 27-117, “ * * » unless * * * the error * * * has affected the results of the trial.” O’Brien v. State, 205 Tenn. 405 , 326 S.W.2d 759 . Virginia: Seems to retain the presumption of injury rule of Crease v. Barrett, 1 C. M. & R. 919 (see Maxwell, 89 Ala. 150 , 7 So. 824 ). Joyner v. Commonwealth, 192 Va. 471 , 65 S.E.2d 555 .

See also Federal Cr.Proe., Rule 52: Vanderbilt, Minimum Standards of Judicial Administration, p. 559.