Phillips v. State , 170 Ala. 5 ( 1910 )

ANDERSON, J.

The evidence as to the character of the wound was admissible to show the intent accompanying the assault.—Brown v. State, 142 Ala. 294, 38 South. 268; Meridith v. State, 60 Ala. 441; Jachson v. State, 94 Ala. 89, 10 South. 509. The condition of the assaulted party, resulting from the assault, was but a method of showing the nature and extent of the assault and the injury therefrom, and these things were of the res gestae of the offense charged.—Phillips v. State, 161 Ala. 60, 49 South. 794. Nor was there error, upon the part of the trial court, in refusing to confine this evidence to merely showing the “fierceness” of the attack. The assault may have been mildly committed, but with a murderous intent and may have produced disastrous results. The assault may have been “fiercely” made, yet could have produced such dangerous results as to afford an inference for the jury that it was-made with the intent to murder.

The showing for the witness “Marvin” and “Bascom. Johnson,” both before and after the last amendment,, contained details in reference to the first difficulty, and the objection to same was properly sustained.—Jones v. State, 116 Ala. 468, 23 South. 135.

The evidence as to the ownership of the cotton, and the fact that the defendant had already taken off a bale of cotton, in which Faircloth was interested, were questions to be considered by the jury in determining whether or not the defendant or Melton provoked the difficulty. Melton was acting for, and at the time the agent of, his daughter, Mrs. Faircloth, and her interest in or ownership in the cotton were factors to be considered by the jury in determining whether or not Melton’s' conduct, in approaching the defendant on the subject, was in a bona fide business way, or whether or not it was wrongful and done for the purpose of provoking a difficulty.

There was a dispute in tbe evidence as to tbe distance tbe defendant was from Melton when be shot him, and tbe testimony of Dr. Farisb, who was a gun expert, as to the powder burns, tbe character of tbe shells, and tbe manner in which tbe shot would scatter within a certain distance, was admissible as evidence for tbe jury in determining whether or not the defendant ivas close or some distance off when be fired the shot. And distance was a factor in determining whether or not tbe shot was fired with tbe intent to kill.

It seems that, upon objection to the questions to tbe witness Booker, tbe only ground of objection assigned was general, that it' was “illegal.” Tbe questions were not patently illegal, besides tbe court called upon counsel to specify tbe grounds of objection, and which tbe record fails to show was done, and tbe trial court will not be put in error for overruling said objection.—Rule 33, Code 1907, p. 1527.

Charge 1, requested by tbe defendant, was properly refused. If not otherwise bad, it invaded tbe province of the jury in assuming that tbe defendant bad tbe right to stand bis ground upon tbe facts therein hypothesized, when it was a question for tbe jury to determine whether or not tbe defendant was in imminent peril and bad tbe right to stand bis ground.

Charge 4, requested by tbe defendant, was bad. If not otherwise faulty, it pretermits the right of tbe jury to convict for a simple assault, which was permissible under the indictment. They may not have been satisfied that tbe defendant was guilty a.s charged in tbe indictment, but that be was guilty of a simple assault and battey, yet the charge forbids any conviction if there is a single juror who is not satisfied that the defendant is guilty as charged in the indictment, to wit, an assault to murder.

There was no error in refusing charges A. B, and C, requested by the defendant. If not otherwise bad, they were calculated to mislead the jury. The lot may have been the defendant’s place of business for certain purposes, and while there for those purposes he may have been under no duty to retreat, but the proof shows that he had the right to go there for only certain purposes, and there was evidence tending to show that he went there either to shoot Melton or remove the cotton, upon which Faircloth had a claim or lien, one or both; and if he was there for either of said purposes, he was not relieved of the duty to retreat.

There was no error in refusing charge Q, requested by the defendant.—Phillips v. State, 161 Ala. 60, 49 South. 794.

The other charges refused the defendant were argumentative, misleading, or abstract, if not otherwise bad; and a discusión of same, in this opinion, could serve no good purpose.

The judgment of the circuit court is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and Evans, JJ., concur.