Malchow v. State

| Ala. Ct. App. | Jun 13, 1912

WALKER, P. J. —

In view of the rulings of the Supreme Court in the cases of State ex rel. Vandiver v. Burke, 175 Ala., 57 South. 870, and Cooke, County Treasurer, v. Burke, 58 So. 984" court="Ala." date_filed="1912-05-28" href="https://app.midpage.ai/document/cook-v-burke-7366123?utm_source=webapp" opinion_id="7366123">58 South. 984, it is. plain that the contentions of the appellant in reference to the legal existence and jurisdiction of the county court of Cullman cannot be sustained.

The state offered evidence tending to prove that the defendant assaulted one Fred Schafer on the occasion of the latter’s going to the residence on a place adjoining his OAvn. It was not improper to permit the prosecution to offer evidence tending to prove that the assaulted person at that time had the right to the possession of that place under a rental contract with its owner. The evidence had some tendency to show that he was not in fault in provoking the assault and to enable the jury to consider the evidence as to the conduct of the defendant in ,the light of the attending circumstances and of the siuation of the parties to the difficulty. — Maddox v. State, 159 Ala. 53" court="Ala." date_filed="1909-02-18" href="https://app.midpage.ai/document/maddox-v-state-7363972?utm_source=webapp" opinion_id="7363972">159 Ala. 53, 48 South. 689. The evidence was admitted, as stated by the court, only for the purpose of showing that the person charged to have -been assaulted was not a trespasser.

On similar considerations, it was not improper to permit the defendant to be asked, on his cross-examination, if he knew, when he went to that place that morning, that his grandfather and grandmother, who had formerly lived there, had gone to Chicago. His answer to this question might have some tendency to show that he did not suppose or understand that the place was any longer in the possession or under the control of his grandparents, and might shed some light on the purpose or motive actuating him in his conduct towards the person charged to have been assaulted. — Bonner v. State, 107 Ala. 97" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/bonner-v-state-6516153?utm_source=webapp" opinion_id="6516153">107 Ala. 97, 18 South. 226.

The signatures of the parties to the rental contract under which the party assaulted claimed to have possession of the premises, npon which the alleged assault was claimed to have occurred, could be proved by the testimony of one of the parties to it to the effect that he signed it and saw the other party sign it; there being no attesting witnesses to the signatures. — Jones on Evidence, § 545; Code, §§ 4005, 4006.

The court was warranted in refusing the written charge requested by the defendant because it assumed as a fact, or that there was evidence tending to show that it was a fact, that “old man Malchow’s” disposition of the place referred to was subsequent to his renting of it to the defendant for the year 1910. There was an absence of evidence on this point.

The written charge on the subject of reasonable doubt wbicb was given at the instance of the state was not very illuminating, and it is difficult to suppose that the jury could have found it helpful in their deliberations; but we cannot affirm that the giving of it involved error or injury, as in effect it asserted the harmless, though practically meaningless, proposition that a reasonable doubt is no more than a reasonable doubt. We are not to be understood as indicating that the court would have been in error in refusing to give such a charge.

Under the evidence it was a conceded fact that the defendant struck Fred Schafer, the person alleged to have been assaulted, with a bed slat. This being true, the court was not in error in giving the other written charge requested by the state. — Harris v. State, 123 Ala. 69" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/harris-v-state-6518203?utm_source=webapp" opinion_id="6518203">123 Ala. 69, 26 South. 515; Howell v. State, 79 Ala. 284; Johnson v. State, 136 Ala. 76" court="Ala." date_filed="1902-11-15" href="https://app.midpage.ai/document/johnson-v-state-6519832?utm_source=webapp" opinion_id="6519832">136 Ala. 76, 34 South. 209.

Affirmed.