Ward v. State , 153 Ala. 9 ( 1907 )

ANDERSON, J.

— The objection to questions to the witness Florence Walker as to Ed Ward, the husband of defendant, were properly sustained. It ivas not relevant or material under the plea of not guilty. Nor does the record sIioav that it was relevant under the plea of insanity. It might have become relevant in connection with other evidence tending to establish insanity; but we cannot put the trial court in error for sustaining the objections, in the absence of any evidence or offer of any evidence rendering it relevant or material and which was not introduced or offered.

The indictment charged a felony, an assault to murder, and the defendant was convicted of a misdemeanor, an assault and battery, and as the oral charge of the court, as well as charges 1 and 6, requested by the defendant, related only to an assault to murder, if there was error in giving the one and refusing the other two, which we need not and do not decide, it Avas error without injury.

Charge 2, requested by the defendant, Avas properly refused. In the first place, the defendant was acquitted of an assault to murder, and the evidence fully warranted its refusal as to an assault, or an assault with a weapon, and we might add as to an assault to murder.

Charges 3 and 4, requested by the defendant, Avere properly refused. They were answers to the argument of the prosecuting attorney, and have been repeatedly condemned by this court.

Charge 5, requested by the defendant, Avas properly refused. Motive is something to be inferred, and is not susceptible of actual proof. Yet the charge may have misled the jury to the belief that the state had to actually prove a motive, which is not incumbent upon it.

The judgment of the criminal court is affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ„ concur.