Walker v. State , 85 Ala. 7 ( 1887 )

CLOPTON, J.

— All minor or evidentiary circumstances, which, tend to shed light on the intent of the defendant, are admissible in evidence against him, though they may have transpired previous to the commission of the offense. Motive is an inferential fact, and may be inferred not merely from the attendant and surrounding circumstances, but, in conjunction with these, all previous occurrences having reference to, and connected with the commission of the offense. It having been shown that the defendant and the woman injured had lived in adultery for some time, and that she left him, in May, 1887; and there being evidence tending to show, that he shot her because of her persistent refusal to return and live with him; the relation which had existed, and the defendant’s repeated and continuous efforts, growing out of such relation, to induce her to return, her repeated refusals, his following her from place to place, his threats in consequence of her continued refusal, and demonstrations of violence on such occasions, are each and all competent evidence to go to the j ury, in connection with the immediate circumstances of the injury, from which may be inferred the intent with which the assault was made.

If it be said, that the weight and force of some of the transactions and declarations should be regarded as weakened or lessened by the lapse of time, such probable effect is more than counteracted by the constant and frequent repetitions, continuing up to, or about the time of the injury. But, if entitled to little weight, they nevertheless can not be considered incompetent or irrelevant evidence. — Johnson v. State, 17 Ala. 618; Hudson v. State, 61 Ala. 333; Evans v. State, 62 Ala. 6.

The menace made by defendant in the court-house, after the indictment was found, and about two weeks before the trial, was not merely a threat having reference to the future exclusively; it also referred to a past act, and included an implied admission, in the form of a threat, of the previous attempt to kill her, and though having failed, he would yet accomplish his intention. It manifested his state of feeling towards the person whom he had seriously wounded, not only at the time of the menace, but also at the time of the assault, and that he still cherished the malicious intent. The evidence comes within the spirit and reason of the rule laid down in Henderson v. State, 70 Ala. 29; and McManus v. State, 36 Ala. 285.

The court having omitted, in the general charge, to instruct the jury specifically as to the offense of assault and battery, counsel called attention to tbe omission. In response tbe presiding judge remarked, “I know of no evidence in tbis case, which would warrant a verdict for assault and battery.” Counsel excepted to tbe remark of tbe judge, but did not state any evidence on which to base such charge, and did not request any special charge on tbe question. It may be conceded that, bad there been any evidence, on wbicb a verdict for tbe minor offense could have been reasonably found, such remark in tbe bearing of tbe jury would work a reversal of tbe judgment. But, on examination, tbe record, wbicb purports to set out all tbe evidence, does not disclose any, unless it be tbe proof that tbe defendant was drunk a short time before tbe difficulty. Tbis testimony falls far short of showing that be was so intoxicated as to incapacitate him to form tbe design to kill, or the intent to murder. — Morrison v. State, 84 Ala. 405.

Tbe charges given at tbe instance of tbe prosecution state tbe law in accordance with our uniform rulings. — Baker v. State, 81 Ala. 38; Watson v. State, 82 Ala. 10; Storey v. State, 71 Ala. 329; DeArman v. State, 71 Ala. 351.

We discover no error in the record.

Affirmed.