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Smith v. State12/22/2000
" f you find that ... Smith killed the victims, but ... Smith didn't intend to kill the victims, then you cannot convict ... Smith of capital murder.
" f you find that Mr. Smith didn't have the capacity to form an intent, then you must acquit him of capital murder, because capital murder requires an intentional killing." (R. 1857-59, 1875-76.)
The following verdict form, approved by the appellant's counsel, was read to the jury at the end of the trial court's charge:
" e, the jury, find the defendant ... guilty of capital murder, in that, he did intentionally cause the death of David Lee Bennett by shooting him with a .22 caliber rifle during the course of intentionally causing the deaths of Willie James Flournoy and Theresa Ann Helms by shooting them with a .22 caliber rifle in violation of § 13A-5-40(10) of the Code of Alabama." (R. 1876-77.)
The jury was then instructed: " our verdict must be unanimous, which means all twelve of you have to agree on a verdict either of guilty or not guilty." After deliberations, the jury foreperson signed the verdict form above. When the jury returned that verdict, each juror acknowledged that that verdict was his or her verdict in the case.
The appellant contends that the court's instructions allowed the jury to convict him of having committed the capital offense without finding intent as to two victims. He argues:
" he jurors were told that as to each victim, an intent to kill had to be found as to him `or another person.' This charge does not work in a case like this. It meant that if the jurors believed there was an intent to kill Mr. Bennett but not Mr. Flournoy, they could still convict because Mr. Bennett could serve as the `other person' with regard to the second victim." (Appellant's brief, p. 65.)
Section 13A-5-40(b) specifies that murder, as a component of the capital offense, means "murder" as defined in § 13A-6-2(a)(1): "A person commits the crime of murder if ... ith intent to cause the death of another person, he causes the death of that person or another person ...." (Emphasis added.)
"By its language, § 13A-6-2(a)(1) clearly invokes the doctrine of transferred intent in defining the crime of murder. For example, if Defendant fires a gun with the intent to kill Smith but instead kills Jones, then Defendant is guilty of the intentional murder of Jones.
"... Section 13A-5-40(b) refers to § 13A-6-2(a)(1) for the definition of `murder'; and § 13A-6-2(a)(1) codifies the doctrine of transferred intent in that definition." Ex parte Jackson, 614 So. 2d 405, 407 (Ala. 1993).
Thus, depending on the facts of a case, it is conceivable that the offense of murder wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct could arise from the intent to kill one person. The court in Living v. State, [Ms. CR-98-1326, May 26, 2000] __ So. 2d __ (Ala. Crim. App. 2000), reckoned with such possibility. In Living the court stated:
"On appeal, ... Living argues that the jury could have found that he intentionally killed Jennifer, but that he did not intend to kill Melissa. Therefore, according to Living, the jury could have found him guilty of murder with regard to Jennifer and guilty of reckless manslaughter with regard to Melissa.
"Under the doctrine of transferred intent, however, if Living intended to kill Jennifer he would be criminally culpable for murder with regard to the unintended death of Melissa. See Harvey v. State, 111 Md.App. 401, 682 A.2d 628 (1996) (the doctrine of transferred intent operates with full force whenever the unintended victim is hit and killed; i
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