Teague v. State , 144 Ala. 42 ( 1906 )

HARALSON, J.

When Loard was being examined for the state, he was asked on cross-examination if his brother, W. T. Loard, had not been drinking that evening, and he replied that he had taken one and possibly itwo drinks. He was then asked,, if his brother was not in the habit of getting drunk when he came to town, to which question an objection by the state was sustained. The evidence called for was irrelevant to the issue in the case, unless it was shown that he was drunk on the occasion of his difficulty with defendant, in which case, possiblv, it might have been relevant, — King v. State, 90 Ala. 616, 8 So. 856.

The witness, Searcy, for the State, was asked, if, after the shooting was all over, several parties came to his store, and got shot guns and started after defendant, and on objection by the state, the question was not allowed. The evidence called for was not a part of the res gestae, and was irrelevant, as was the one to witness Rhodes, if after the difficulty, he had not gotten a gun.” — Pitts v. State, 140 Ala. 70, 37 So. 101.

John Loard testified, in reply to questions propounded by defendant on cross-examination, that there were two TV. T. Leards who lived near Luverne. The defendant then asked the witness: “Your father then, is TV. T. Loard, Senior, and your brother, TV. T. Loard,” witness replied, “Yes sir, I suppose so. They are both named TV. T. 'Loard. They both live near Luverne.” There was no evidence ¡that the party assaulted, TY. T. Loard, used the title, Junior, after his name, nor that either the father or son so signed their names. The word Junior, or Jr., or words of similar import, are ordinarily mere matters of description, and no part of a person’s legal name. The evidence in this case shows without dispute, that it was the son who was assaulted. There is no pretense that the assault was on the father. — 16 Am. & Eng. Ency. Law, (2nd ed.) 121; 21 Ib. (2nd ed.) 1037. There was, therefore, no error in overruling defendant’s motion to quash the indictment on account of the alleged variance between the name W. T. Loard, used in the indictment, as the party assaulted, and the real party assaulted, whose name, as was attempted to be shown, was W. T. Loard, Junior.

There was no error, so far as brought to light, in what occurred on the trial as to the showing for the witness, Dr. J. E. Kendrick, as found on pp. 14 and 16 of the record. What the solicitor on the cross, examined Dr. Kendrick about, when he came in and was examined in chief by defendant, does not appear. If he asked improper questions, which the court allowed, this should have been made to appear. The bill of exceptions does state, that “The court did not allow the solicitor to introduce any part of the showing in evidence.” It may, therefore, be said, that if there was any error in the proceedings, touching this showing, it is not made to appear by defendant, and it was harmless error, from aught appearing.

The defendant introduced and examined as a witness, Dick Tisdale, and asked him, “Did you see any guns or pistols after the difficulty, and who had them?” The court properly declined to allow the question to be answered. The possession of guns or pistols by any persons after the difficulty, was irrelevant to the main issue. The same thing may be said as to the question asked the witness, Veasey, whether, after the difficulty, several boys did not run up to his store and get guns out of his case.

The defendant, after the evidence in the case was all in, moved to quash the indictment for the reason, in substance, that the same “was not found by the solicitor of the second judicial circuit, or by any one legally appointed instead of the solicitor.” The indictment is signed by “W. W. Pearson, special solicitor of the second judicial circuit.” An order of court entered of record was introduced, which recited that “the regular solicitor was unable to discharge the duties of this court on account of Lis sickness, and tlia't W. W. Pearson, a member of the bar, possessed the qualifications required by law for a solicitor of the court, and it was ordered that said Pearson be and he was appointed as a solicitor for the spring term, 1905, upon his filing the oath of office, which is this day filed.”

It was not essential to the validity of the indictment, that the regular solicitor, or that any other solicitor, should have prepared or signed it. “An indictment receives its legal efficacy from the finding and return of the grand jury; and the legal evidence of its validity, is the return, ‘a true bill/ apparent upon some part of it, bearing the signature of the foreman.” — Joyner v. State, 78 Ala. 451; Holley v. State, 75 Ala. 14. The indictment in this instance, in addition .to being signed by the special solicitor, bore the indorsement: “Grand jury No. 21. A true bill, M. M. Perdue, Foreman of Grand Jury.” Time was no error in the refusal'of the court to quash the indictment'. — Prince v. State, 140 Ala. 158, 163, 37 South. 171.

The general charge was properly refused. Charge BB was also properly refused. There was evidence tending to show that defendant was guilty of an assault with intent to murder. From what has already been said, it will appear that charge CC was properly refused.

Charge marked H gave itndue prominence to the evidence of the witnesses therein named. Charge 19th S is also argumentative.

Charge Z is an apparent attempt to follow charge 3 in the case of Smith v. State, 86 Ala. 28, 5 South. 478, but it fails to hypothesize that the defendant acted under sudden passion.

Charge 103 asserts that evidence of good character considered in connection with the other evidence may generate a reasonable doubt of guilt, when the law is, proof of good character considered with the other evidence may generate a reasonable doubt. There is a marked distinction between proof of good character and evidence of good character.

Charge 105 is imperfect and misleading in the use of the words, “if the offense of the assault.” With those words, it is not clear what the charge means.

Charges 110 and 111 were erroneous instructions. Under thé evidence, 'the jury might have indulged a reasonable doubt whether an assault with intent to murder was committed, but they may have found that the lesser offense of an assault had been committed.

Charge 114 is erroneous. It ignores in its second hypothesis any consideration of fault of Caffee in bringing on the difficulty. — Sherrell v. State, 138 Ala. 3, 35 South. 120.

Affirmed.

Dowdell, Simpson and Denson, JJ., concurring.