102 Ala. 144 | Ala. | 1893
The appellant, Horn, was indicted and tried for assaulting with intent to murder one Isaac Rosenberg, and convicted of an assault and battery upon said Rosenberg. The said Isaac was the first witness examined in the cause. His testimony tended to show that the defendant assaulted and beat him and drew a pistol, whereupon the witness ran, and that while running he heard the report of a pistol and was stricken by a pistol ball, but he did not see a pistol discharged by the defendant or any one else. It was, we think, clearly competent for the prosecution to strengthen the inference afforded by this evidence, to-wit, that the defendant discharged the pistol, by the further testimony of this witness to the effect that on looking around immediately after being shot he saw the defendant shoot at his, the witness’s, wife, and that soon afterwards defendant “tried to shoot Tennerson, witness’s clerk, who
Equally untenable is the objection to the evidence, that soon after the difficulty defendant refused to be arrested, saying that he would kill any one who tried to arrest him and that he would die before he would give up his pistol. — Bowles v. State, 58 Ala. 335; Ross v. State, 74 Ala. 532; Sylvester v. State, 72 Ala. 206.
The foregoing covers all the exceptions reserved to the trial court’s ruling on evidence ; they are all without merit.
The charge was, therefore, a mere argument which might possibly have been given without error, but the refusal of which was equally without error. Moreover, its last clause involved a tendency to mislead the jury, under the particular facts of this case, to an assumption of the right to capriciously believe the defendant without due consideration of the other testimony before them.
There is no error in the record, axxd the judgment of the cix’cuit court is affirmed.