safer rule in Alabama

2015“The ‘safer’ practice is to charge upon all degrees of homicide: ‘(I)t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.’ Pierson v. State, 99 Ala. 148, 153 , 13 So. 550 (1892), approved in Williams v. State, 251 Ala. 397, 399 , 39 So.2d 37 (1948).” Phelps v. State, 435 So.2d 158, 163 (Ala.Crim.App.1983).

2015“The ‘safer’ practice is to charge upon all degrees of homicide: ‘(I)t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.’ Pierson v. State, 99 Ala. 148, 153 , 13 So. 550 (1892), approved in Williams v. State, 251 Ala. 397, 399 , 39 So.2d 37 (1948).” Phelps v. State, 435 So.2d 158, 163 (Ala.Crim.App.1983).

1998This is especially true `[i]n a capital case, [where] there is the intolerable and constitutionally prohibited risk of an unwarranted conviction that is created when the jury is deprived of the "third option" of convicting the defendant of a lesser included offense.' Connolly v. State, 500 So.2d 57, 67 (Ala. Cr.App.1985), affirmed, 500 So.2d 68 (Ala.1986)." Fletcher v. State, 621 So.2d at 1022 .

1994This is especially true `[i]n a capital case, [where] there is the intolerable and constitutionally prohibited risk of an unwarranted conviction that is created when the jury is deprived of the "third option" of convicting the defendant of a lesser included offense.' Connolly v. State, 500 So.2d 57, 67 (Ala.Cr.App.1985), affirmed, 500 So.2d 68 (Ala.1986) . " Fletcher v. State, 621 So.2d at 1019-22.

1998Because we have determined that the failure to instruct the jury on intoxication was reversible error, we need not address the question whether the failure to give an accompanying manslaughter instruction was also reversible error. *889 "We do observe, however, that `[i]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.' Phelps v. State, 435 So.2d 158, 163 (Ala.Cr.App.1983), quot

1994We do observe, however, that `[i]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.' Phelps v. State, 435 So.2d 158, 163 (Ala.Cr.App.1983), quoted in Jones v. State, 514 So.2d 1060, 1064 (Ala.Cr.App.), cert. denied, 514 So.2d 1068 (Ala.1987) .

1998Section 13A-1-9(b) provides, "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." "`"The `safer' practice is to charge upon all degrees of homicide: `[I]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.' Pierson v. State, 99 Ala. 148, 153 , 13 So. 550 (1892), app

1991See also Anderson v. State, 507 So.2d 580 (Ala.Crim.App.1987); Connolly v. State, 500 So.2d 57 (Ala.Crim.App.1985), aff’d, 500 So.2d 68 (Ala.1986).” Holladay v. State, 549 So.2d 122, 129 (Ala.Cr.App.1988), affirmed, 549 So.2d 135 (Ala.1989), cert. denied, 493 U.S. 1012 , 110 S.Ct. 575 , 107 L.Ed.2d 569 (1989).

1998Section 13A-1-9(b) provides, "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." "`"The `safer' practice is to charge upon all degrees of homicide: `[I]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.' Pierson v. State, 99 Ala. 148, 153 , 13 So. 550 (1892), app

1991See also Anderson v. State, 507 So.2d 580 (Ala.Crim.App.1987); Connolly v. State, 500 So.2d 57 (Ala.Crim.App.1985), aff’d, 500 So.2d 68 (Ala.1986).” Holladay v. State, 549 So.2d 122, 129 (Ala.Cr.App.1988), affirmed, 549 So.2d 135 (Ala.1989), cert. denied, 493 U.S. 1012 , 110 S.Ct. 575 , 107 L.Ed.2d 569 (1989).

1987The plea of not guilty puts in issue these several degrees of the charge of homicide included in the indictment.” (Emphasis supplied.) Dennis v. State, 112 Ala. 64, 66 , 20 So. 925 .. “ ‘It is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.’ (Our italics.) Pierson v. State, 99 Ala. 148,153 , 13 So. 550 , 552.

1972The plea of not guilty puts in issue these several degrees of the charge of homicide included in the indictment.’ (Emphasis supplied.) Dennis v. State, 112 Ala. 64, 66 , 20 So. 925 . “ ‘It is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.’ (Our italics.) Pierson v. State, 99 Ala. 148, 153 , 13 So. 550 , 552 . . . .” After a careful review of the testimony in the light of the above

1998This is especially true `[i]n a capital case, [where] there is the intolerable and constitutionally prohibited risk of an unwarranted conviction that is created when the jury is deprived of the "third option" of convicting the defendant of a lesser included offense.' Connolly v. State, 500 So.2d 57, 67 (Ala. Cr.App.1985), affirmed, 500 So.2d 68 (Ala.1986)." Fletcher v. State, 621 So.2d at 1022 .

1998Section 13A-1-9(b) provides, "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." "`"The `safer' practice is to charge upon all degrees of homicide: `[I]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.' Pierson v. State, 99 Ala. 148, 153 , 13 So. 550 (1892), app

1996As this court held in Anderson v. State, 507 So.2d 580 (Ala.Crim.App.1987), “The ‘safer’ practice is to charge upon all degrees of homicide: ‘(I)t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.’ Pierson v. State, 99 Ala. 148, 153 , 13 So. 550 (1892), approved in Williams v. State, 251 Ala. 397 , 39 So.2d 37 (1948),” cert. denied, 251 Ala. 696 , 39 So.2d 39 (Ala.1949).

1996As this court held in Anderson v. State, 507 So.2d 580 (Ala.Crim.App.1987), “The ‘safer’ practice is to charge upon all degrees of homicide: ‘(I)t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.’ Pierson v. State, 99 Ala. 148, 153 , 13 So. 550 (1892), approved in Williams v. State, 251 Ala. 397 , 39 So.2d 37 (1948),” cert. denied, 251 Ala. 696 , 39 So.2d 39 (Ala.1949).

1988"Under Alabama law, the rule in non-capital cases is that a lesser included offense instruction should be given if 'there is any reasonable theory from the evidence which would support the position.' " Hopper , citing Fulghum [ v. State , 291 Ala. 71 , 277 So.2d 886 (1973).] By statute, "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for *Page 1351 a verdict convicting the defendant of the included offense." Alabama Code Section 13A-1-9 (b) (1975).' " Woods v. State , 485 So.2d 1243 , 1245 (Ala.Cr.App. 1986), quoting Phelps v. State,

1988The record indicates that the trial judge charged the jury on the offense of murder and the lesser-included offense of manslaughter. " 'The "safer" practice is to charge upon all degrees of homicide: "[I]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree." Pierson v. State , 99 Ala. 148 , 153 , 13 So. 550 (1892), approved in Williams v. State , 251 Ala. 397 , 399 , 39 So.2d 37 (19

1988"Under Alabama law, the rule in non-capital cases is that a lesser included offense instruction should be given if 'there is any reasonable theory from the evidence which would support the position.' " Hopper , citing Fulghum [ v. State , 291 Ala. 71 , 277 So.2d 886 (1973).] By statute, "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for *Page 1351 a verdict convicting the defendant of the included offense." Alabama Code Section 13A-1-9 (b) (1975).' " Woods v. State , 485 So.2d 1243 , 1245 (Ala.Cr.App. 1986), quoting Phelps v. State,

1988"Under Alabama law, the rule in non-capital cases is that a lesser included offense instruction should be given if 'there is any reasonable theory from the evidence which would support the position.' " Hopper , citing Fulghum [ v. State , 291 Ala. 71 , 277 So.2d 886 (1973).] By statute, "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for *Page 1351 a verdict convicting the defendant of the included offense." Alabama Code Section 13A-1-9 (b) (1975).' " Woods v. State , 485 So.2d 1243 , 1245 (Ala.Cr.App. 1986), quoting Phelps v. State,

1988The record indicates that the trial judge charged the jury on the offense of murder and the lesser-included offense of manslaughter. " 'The "safer" practice is to charge upon all degrees of homicide: "[I]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree." Pierson v. State , 99 Ala. 148 , 153 , 13 So. 550 (1892), approved in Williams v. State , 251 Ala. 397 , 399 , 39 So.2d 37 (19

1988The record indicates that the trial judge charged the jury on the offense of murder and the lesser-included offense of manslaughter. " 'The "safer" practice is to charge upon all degrees of homicide: "[I]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree." Pierson v. State , 99 Ala. 148 , 153 , 13 So. 550 (1892), approved in Williams v. State , 251 Ala. 397 , 399 , 39 So.2d 37 (19

1974Williams v. State, 251 Ala. 397 , 39 So.2d 37 ; Jarrell v. State, 251 Ala. 50 , 36 So.2d 336 .

1974Williams v. State, 251 Ala. 397 , 39 So.2d 37 ; Jarrell v. State, 251 Ala. 50 , 36 So.2d 336 .

1974Williams v. State, 251 Ala. 397 , 39 So.2d 37 ; Miller v. State, 40 Ala.App. 533 , 119 So.2d 197 .

1974Williams v. State, 251 Ala. 397 , 39 So.2d 37 ; Miller v. State, 40 Ala.App. 533 , 119 So.2d 197 .

1947As stated in Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 527—“We think, when the evidence sustaining the charge is wholly circumstantial, and the character of the wound causing the death tends to show it was done by cutting or stabbing, and the relátions of the parties to each other existing as shown in this case, the safer rule is to charge on the law of manslaughter, and to let the jury say whether there are facts which would reduce the crime to a lower degree than murder.” Writing to this same question, Justice Brown, now of our Supreme Court, but then a member of this court, in Jones v. St

1947As stated in Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 527—“We think, when the evidence sustaining the charge is wholly circumstantial, and the character of the wound causing the death tends to show it was done by cutting or stabbing, and the relátions of the parties to each other existing as shown in this case, the safer rule is to charge on the law of manslaughter, and to let the jury say whether there are facts which would reduce the crime to a lower degree than murder.” Writing to this same question, Justice Brown, now of our Supreme Court, but then a member of this court, in Jones v. St

1947As stated in Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 527—“We think, when the evidence sustaining the charge is wholly circumstantial, and the character of the wound causing the death tends to show it was done by cutting or stabbing, and the relátions of the parties to each other existing as shown in this case, the safer rule is to charge on the law of manslaughter, and to let the jury say whether there are facts which would reduce the crime to a lower degree than murder.” Writing to this same question, Justice Brown, now of our Supreme Court, but then a member of this court, in Jones v. St

1947As stated in Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 527—“We think, when the evidence sustaining the charge is wholly circumstantial, and the character of the wound causing the death tends to show it was done by cutting or stabbing, and the relátions of the parties to each other existing as shown in this case, the safer rule is to charge on the law of manslaughter, and to let the jury say whether there are facts which would reduce the crime to a lower degree than murder.” Writing to this same question, Justice Brown, now of our Supreme Court, but then a member of this court, in Jones v. St