Ellis v. State , 105 Ala. 72 ( 1894 )

COLEMAN, J.

The defendant was convicted of a felonious assault and sentenced to the penitentiary. The State having proven that the defendant fired three separate shots at the party assaulted, the defendant moved the court to require the State to elect for which of the shots it would prosecute. The evidence tended to show that the three shots followed each other in instantaneous succession. The facts did not present a case for an election. As was said in the case of Busby v. The State, 77 Ala. 66, the last “might justly be regarded as but a continuation of the assault and done under the impulse of the same design,” and in execution of the same intent. With equal propriety the State could be required to elect in case of an ordinary assault and battery, when there was evidence that more blows than one was given, for which of the blows the State intended to prosecute.

The defendant was "asked by the prosecution on cross-examination : ‘ ‘ Why did you have a pistol ? ” and against his objection the witness was required to answer the question. There are some decisions which hold, “that an uncommunicated motive or intent, with which a party did an act or refrained from an act, is not matter as to which he can testify.”—Dean v. The State, 100 Ala. 102; Ball v. Farley, Spear & Co., 81 Ala. 288; Whizenant v. The State, 71 Ala. 383. When, however, an objection is made, upon definite and specified grounds, none of which are well taken, the courtis not bound to cast about for other grounds of objection. If those assigned do not sustain the motion, it is not a reversible error to overrule the motion.—Steiner Bros. v. Tranum, 98 Ala. 319; McDaniel v. The State, 97 Ala. 14. The defendant was upon trial for an assault with intent to murder. To convict, the State was required to show the specific intent to commit the offense. Evidence that a party armed himself for the purpose of the homicide, is material and relevant. The State undertook to elicit a fact which was material and relevant, by an illegal question. There was no objection to the question on this account. The grounds of objection were that the evidence sought to be elicited was not material and was irrelevant. The other ground was that the evidence, if admitted would be injurious to the defendant. This can be said of all criminating evidence. The State asked the witness : ‘ Tf the pistol was concealed?” The question was palpably wrong, and if the question had been objected to, a refusal to sustain the objection would have been reversible error. The defendant interposed no objection to the question, but proceeded to answer. Subsequently, he moved the court to exclude the question and answer. This motion came too late. A party will not be permitted to waive an objection to an improper question, so as to get the benefit of an answer before the jury, and then obtain the benefit of an exception by a motion to exclude it. Nor can a party on trial speculate in this way upon the answer of the witness.—McCalman v. The State, 96 Ala. 98; Billingsley v. The State, Ib. 126.

The charge requested by the defendant was properly refused. It ignores the duty to retreat, and also the evidence which tended to show that he fired the pistol without provocation or fault on the part of the party assaulted. In fact there was evidence tending to show that the defendant was wholly at fault.

Affirmed.