Elmore v. State , 110 Ala. 63 ( 1895 )

HARALSON, J.

The assault made on Robert Comer in which it is alleged defendant participated and is guilty, emanated from a difficulty immediately preceding, between other parties, in which one of them, Charlie Bell, was stabbed by the other, Ike Thornton, the said Comer and others being present. The defendant manifested sympathy for Bell and encouraged him, as is alleged and as the evidence tends to show, to shoot Thornton and said Comer, the latter difficulty following within a few minutes after the first. An account of this first difficulty between Thornton and Bell was allowed to go in evidence, against the objections of defendant. In this there was no error, under the objections as interposed. The objections to the evidence were general, and did not specify the particular details of the first difficulty to which objections were raised. The fact that there was a previous difficulty, out of which the second one grew, was admissible, and if any of the details of it as offered were inadmissible, they should have been specified. Besides, it appears that defendant asked Charles Bell about his being cut in the difficulty which had just occurred, and Bell told him who did it and the circumstances. What details the defendant called for, he coukl not object to, — and the court was not bound to select this from other facts, if any, which were .subject to objection, on the mere general objections of defendant to the whole evidence.

The charges 1 and 2 requested and given for the State have been so repeatedly approved, it is unnecessary to review them.—Martin v. The State, 89 Ala. 115; Gibson v. The State, Ib. 121; Tanner v. The State, 92 Ala. 1; Jolly v. The State, 94 Ala. 19.

Charge No. 3 given for the State was, however, an improper instruction. It hypothesizes, that if defendant was present and ready to encourage, aid or abet Charles Bell to make the assault on Robert Comer, with intent to murder him, he would be equally guilty with said Bell. He might have been present, ready to do this, without having done it, and without having formed any conspiracy with Bell to do it.

The charge asked by defendant was properly refused. It was abstract. There was no evidence that defendant’s character was not talked about; and, besides, if there had been such evidence, there is no such rule of law as that invoked.

Fo.r the error in giving the 3d charge for the State, the judgment and sentence of the city court are reversed and the cause remanded.

Reversed and remanded.