Medley v. State , 156 Ala. 78 ( 1908 )

TYSON, C. J.

The defendant was charged with an assault with an intent to murder one Will Lokey. His conviction, however, was for an assault and battery with a weapon. The fact that defendant was seen in possession of the rifle from which the bullet was fired that struck Lokey, the condition of that weapon with respect to being cocked, and what he said was entirely competent; and this is true, notwithstanding all these facts' were deposed to as existing some minutes before the shooting.

The evidence is without dispute that Lokey was hit by a bullet fired from the rifle in the hands of defendant. The tendencies of the testimony support the following theories of the shooting: That defendant intentionally shot Lokey, or that he intentionally discharged the rifle at a place where it was likely some person would be hit, or that he intentionally pointed the rifle at Lokey in violation of section 4342 of the Criminal Code of 1896, or that he was grossly negligent in the handling of the rifle and that its discharge was the result of such negligent act, or that he discharged the rifle along or across a public road in violation of section 5354 of the Criminal Code of 1896. If the battery was the result of any one or of several of these acts combined, the defendant was guilty of the offense for which he was convicted.

The defendant offered no testimony, except as to his good character.

If it be conceded that charge numbered 1, requested by the defendant, asserted a correct proposition, its refusal was clearly innocuous, since it was substantial* ly covered by given charge numbered 4, although this latter charge has been often condemned by this court.

Charge 2 in some of our earlier cases was held to be good, but those cases were pointedly overruled and the charge condemned in Amos v. State, 123 Ala. 50, 26 South. 524. See, also, Thompson v. State, 131 Ala. 18, 31 South. 725; Watkins v. State, 133 Ala. 88, 32 South. 627; Nevill v. State, 133 Ala. 105, 32 South. 596; Willis v. State, 134 Ala. 429, 33 South. 226; Deal v. State, 136 Ala. 52, 34 South 23; Jarvis v. State, 138 Ala. 17, 34 South. 1025; Spraggins v. State, 139 Ala. 93, 35 South. 1000; Shirley v. State, 144 Ala. 35, 40 South. 269; Shelton v. State, 144 Ala. 106, 42 South. 30.

Charge 3 has been repeatedly condemned by .this court. — Compton v. State, 110 Ala. 24, 35, 20 South. 119, and cases there cited; Walker v. State, 134 Ala. 86, 89, 32 South. 703.

Charge 4 was involved, lacking that clearness and perspicuity required of charges.

The refusal of charge 5, if asserting correct propositions, the conviction being for a misdemeanor, will not work a reversal.- — Jarvis v. State, supra.

Charge 6 was inaccurate in its statements of the fact upon which the inhibition of any presumption against him is founded. Section 5297, Cr. Code 1896.

Charge 7 was likewise properly refused, upon the authorities cited supra as condemnatory of charge 2.

The several exceptions to portions of the oral charge must be held to be wholly unavailable to work a reversal. If any one of the parts excepted to was error, it was clearly harmless.

There is no merit in the contention that the offense for which defendant was convicted was not included in the greater offense charged in the indictment.

Affirmed.

Haralson, Simpson, and Denson, JJ., concur.