46 Ala. 195 | Ala. | 1871
— In disposing of this case, we do not think it necessary to consider and determine the propriety of the general charge given to the jury and excepted to by
The first charge asked, I think, might have been given without error; nevertheless, its denial was not erroneous. Although the difference between an assault with intent to murder, and an act done by a riot, as to the character of the intent, may be admitted to be correct, it was not necessary to determine that question on this trial.
Under this indictment, it was necessary for the State to prove the particular intent charged.— Ogletree v. The State, 28 Ala. 693. If the defendant did not know who was being assaulted, and did not know A. J. Baxley, the words imputed to him, under the circumstances, did not prove the. intent charged in the indictment; therefore, the second charge should have been given.
The third charge was correctly refused, whatever may have been the legal effect of the defendant’s exclamation, “kill him,” &c. If it had any legal force, it was not destroyed by after repentance.
It is not pretended that the defendant committed the assault, — it was the act of the mob; nor was it seriously contended that he was, in fact, a member of that unlawful assembly; consequently, the words uttered by him can not be held to have encouraged or aided the persons by whom the assault was committed, unless addressed to, or at least heard by them, or some of them. It was therefore error to refuse the fourth chárge.
No argument is necessary to show the correctness of the fifth charge.
If the defendant did not himself commit the assault, and the only evidence to connect him with the common design, if any such design was proved, are the words alleged to have been uttered by him, it is -very clear he should not be convicted, unless the words were spoken to, or in the hearing of, the persons engaged in the common design.
If these words are the only'evidence of a common design on the part of the defendant; they certainly can prove
For the errors in refusing to give the second, fourth and fifth charges asked, the judgment of the court below is reversed, and the cause is remanded for another trial, and the said defendant will remain in custody until discharged by due course of law.
