Gray v. State , 63 Ala. 66 ( 1879 )

STONE, J.

The prisoner was indicted for an assault with intent to murder Spencer Brooks, which, under our statute, is made a felony. In a trial under such indictment, the intent with which the alleged act was done becomes a material inquiry. As in the case of the kindred though higher crime of murder, formed design, coupled with the attempted use of means capable of producing the result aimed at, makes the offense complete, although in this lesser offense no actual battery or injury is inflicted. Hence, any testimony tending to prove malice aforethought, ill-will previously formed, ancient grudge, or any other probable motive for the act, is admissible, as shedding light on the question of intent, or incentive of the crime. And, under this head, it is permissible to prove previous threats, previous altercations, or prior combats, although such proof may establish the commission of another and substantive offense, for which a separate indictment would lie. Such proof is received, not as constituting any part of the crime for which the prisoner is being tried: its object and scope are to show the relations of the parties, and to aid the jury in determining whether there was the formed design, or felonious intent to commit the crime of murder. Cherished hate, or ill-will, is one of the incentives to murder. But, it is the fact of such previous altercation or combat, and not the particulars or merits of the quarrel, that can be put in evidence. — Hudson v. The State, 61 Ala. 333; Notes v. The State, 26 Ala. 31; Ingram v. The State, 39 Ala. 247; Martin v. The State, 28 Ala. 71; Commander v. The State, 60 Ala. 1; Faire v. The State, 58 Ala. 74. Under this unquestioned principle, all the evidence objected to was clearly admissible. And it is not shown that any of the details or particulars of the former rencontre, or altercation, were put in evidence. Hence, no field is shown for the operation of the rule, that the fact only, and not the particulars, of a former quarrel, can be given in evidence. This record fails to show any evidence which the City Court should have excluded, on the prisoner’s motion to exclude so much of the testimony as tended to show the details of any previous difficulty between the parties.

2. The first exception to the charge is to the words, “ an assault is an attempt to strike in striking distance, or shoot in shooting distance.” This is the language of some of the authorities ; while others are a little more specific, and say there must be an attempt coupled with a present ability to inflict a battery. — Clark’s Manual, §§ 618, 619, 620, 621, 622; 2 Bish. Cr. Law, 6th ed. §§ 23, 28, 30, 31; State v. Blackwell, 9 Ala. 79; Johnson v. The State, 35 Ala. 363; Meredith v. The State, 60 Ala. 441. The word ‘attempt’ means, ‘to make an effort, or endeavor, or an attack.’ An attempt implies more than an intention formed. Some step towards consummation must be taken, before the intention becomes an attempt. Attempt to strike in striking distance, or to shoot in shooting distance, includes the intention, present ability,, and some effort or endeavor to carry that intention into exe-cution. An effort to strike, within striking distance, is an assault. An attempt to shoot, within shooting distance, imports that the assailant had in his possession some description of fire-arm, that he made an effort to use it, and the person on whom he attempted to use it was within the distance the fire-arm would effectively project or discharge its ball. Less than this would not be an attempt to shoot in shooting distance. But, the sentence we have been criticising, is merely the introductory sentence of the charge. Eur-ther on, the court explained what was necessary to constitute ,an attempt; and construing the charge in reference to the evidence, the City Court did not err in the language covered by the first exception.

8. Having reached the conclusion that the City Court did not err in the language quoted above — the subject of the first •exception to the charge — it follows that there is nothing in the other two exceptions; for each of them embraces the language decided above to be free from error, and some other part of the charge of the court, in one and the same exception. An exception to a charge, separable into two or more distinct propositions, will not avail, unless each of the propositions be erroneous. Parties excepting must direct the attention of the court to the error complained of; for the court, having attention thus directed to the particular point .of exception, may, ex mero motu, withdraw the language objected to, or opposing counsel may consent to its withdrawal. Bernstein v. Humes, 60 Ala. 582; South & North Ala. Railroad v. Jones, 56 Ala. 507. But, when the charge is construed in reference to the evidence, we do not think the court erred in any part of the charge that was excepted to. Under the .evidence, the real points of controversy in the court below must have been — first, was the prisoner, when he fired his pistol, within shooting distance of Brooks; second, was it his intention to shoot him, or did he only intend to frighten him? These were questions for the jury, and the record Jails to show they were not fairly presented in the charge of the court.

4. There is nothing in the other exceptions reserved which can benefit the accused. The record of the court below imports absolute verity, and testimony can not be received to assail it, in the absence of a statute authorizing such inquiry. There is no statute authorizing this court to correct the judgment-entry, as was sought in this case. — Weir v. Hoss, 6 Ala. 881; Deslonde v. Darrington, 29 Ala. 92.

The judgment is affirmed.