45 So. 631 | Ala. | 1908
— The appellant was convicted under an indictment charging, first, that he “assaulted and heat Lula Crenshaw with a weapon, to wit, a gun or pistol”; and, second, that he “assaulted Lula Crenshaw with a weapon, to wit, a gun or pistol.” The testimony of Lula Crenshaw was that she and the defendant were standing, facing each other, in a friendly conversation, when a pistol or gun was fired, the ball entering her leg between the knee and thigh, ranging downward, coming out on the other side, and striking the floor near her feet. She did not see the pistol. No one else was present. The defendant testified that he had been drinking; that the pistol fell out of his pocket, or hung on his pocket, in some way; that he did not remember in what position they were standing; that he did not remember having his hand on his pistol until after it dropped to the floor. Several witnesses stated that the parties were on perfectly friendly terms.
There was no error in the refusal of the court to exclude the expressions used by the solicitor in his argument to the effect that the evidence showed a clear case, etc. Although it is the better practice for counsel not to state his own opinion as to the effect of the evidence, yet such expressions are merely a part of the argument, and the court cannot be placed in error for refusing to exclude them.
The court erred in giving the first part of the written charge excepted to. There were in this case two counts in the indictment, one charging assault and battery, and the other, assault; hut, even if this charge could he referred to the second count, it would he erroneous, for the reason that that count charges an assault with a
Referring to the second part of the oral charge excepted to, we understand the expression, “in disregard of the safety of others,” to characterize the negligence as of that gross kind which is criminal. — Fitzgerald v. State, 112 Ala. 34, 20 South. 966. Consequently there was no error in giving this charge.
Charges 1, 2, 3, 4, and 6, requested by the defendant, were properly refused. Besides the want of proper form as to some of them (Moss v. State, 146 Ala. 686, 40 South. 340, fourth headnote), it .was a matter for the jury to determine as to how and with what intent the pistol was fired.
Charge 5 was a mere argument; and, besides, it is not correct to charge the jury that they are not to consider the fact that the grand jury have found an indictment, as tlmy are bound to consider that fact in determining whether the indictment is sustained by the evidence.
The judgment of the court is reversed, and the cause remanded.
