The defendant was tried and convicted of murder in the first degree, and his punishment fixed for the term of his natural life.
The verdict of the jury in the following form, "We, the jury, find the defendant guilty of first degree murder and fix the penalty for life in the penitentiary," was a compliance with the statute, and was sufficient to support the judgment of the court rendered and entered thereon. Section 4457, Code; Durrett v. State, 133 Ala. 119, 32 So. 234; McDonald v. State, 118 Ala. 672,23 So. 637; Robinson v. State, 54 Ala. 86; Noles v. State,24 Ala. 672; Bankhead v. State, 124 Ala. 14, 26 So. 976; Brown v. State, 109 Ala. 70, 20 So. 103.
When the oral charge is considered as a whole, there is no reversible error presented as to the exceptions reserved. The burden of proof was properly stated when the court's attention was directed to the language first employed or alleged to have been used in defining the burden of proof, requiring proof beyond a reasonable doubt, Letson v. State, 215 Ala. 229, 231,110 So. 21, and such was the correction made by the court.
There was no objection interposed to the question to witness A. M. Noogin before answer. And the witness had testified without objection: "I heard him make some remarks when his boy would ask for something — he seemed to be very crabbed." He was then asked: "Tell what Wm. Ledlow said, if he said anything," and was permitted to answer: "Well, this boy asked for water a time or two there, and he would tell him to lay down and shut his mouth and be quiet." The objection then interposed, after answer, for the first time came too late, and was overruled without error. Adams v. State, 22 Ala. App. 310,115 So. 862, certiorari denied 217 Ala. 273, 115 So. 863. See, also, Acts of 1927, p. 636. The answer was responsive to the question.
The rule in regard to a trial court requiring a defendant in a criminal case to go to trial on or without a showing was recently discussed in the case of Jarvis v. State (Ala. Sup.)126 So. 127;1 Waters v. State, 117 Ala. 108, 111, 22 So. 490. A further discussion is unnecessary. It is sufficient to say the witnesses Jones, the Nicklesons, and Blanches were not brought in by the ordinary compulsory process of the law, were not in contempt of court, and their absence was not sufficiently accounted for by the evidence or by appropriate motion of counsel bringing to the attention of the court the relevancy and possibility of obtaining such evidence. And, so far as this record discloses, the defendant went to trial before the state was put upon a showing as to said witness, and without asking opportunity for the process of the court. Jack Jarvis v. State, supra; Allen v. Bannister, 210 Ala. 264, 97 So. 820; Knowles v. Blue, 209 Ala. 29, 95 So. 481; Sanders v. State, 181 Ala. 35,40, 61 So. 336; McLaughlin v. Beyers, 175 Ala. 544, 57 So. 716; Rodgers v. State, 144 Ala. 32, 34, 40 So. 572. There was no abuse of discretion by the trial court — in the absence of proper motions and effort for process — in not putting the state to such admissions of said absent witnesses.
The arraignment discloses there was no plea of insanity. Section 4573, Code; Baker v. State, 209 Ala. 142, 145,95 So. 467. And evidence in the absence of plea is improper, Savage v. State, 15 Ala. App. 168, 72 So. 694; hence the attempted showing and evidence as to insanity was properly refused.
We have carefully examined the record and evidence ruling of the trial court, and find the same free from error.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
1 220 Ala. 501.
On Rehearing.