Newman v. State

May 18, 1909
Versions:49 So. 786
160 Ala. 102
1909 Ala. LEXIS 106
SAYRE, J.

The defendants, having been jointly indicted and tried on a charge of assault with intent to murder, wеre convicted of an assault, and a fine assessed against each of them. Eаch defendant was required to confess judgment for the entire costs of the prosеcution. The defendants were jointly and severally liable for the *105common costs of the joint prosecution, and there was no ‍​‌‌‌​​‌​‌‌‌​‌‌​‌​​​​‌‌​‌​‌​​​​‌​​‌​‌‌‌‌​​​‌‌​​‌‌‍error in the ruling of the court here complained of.— Dent v. State, 42 Ala. 514; Dawson v. Sayre, 80 Ala. 444, 2 South. 479. So far as the costs are concerned, the satisfaction оf execution against either defendant will work a satisfaction as to both. This should have been made clear in the judgment; but its failure in that regard does not affect the liability оf the defendants. Any attempt to.coerce further payment would be an abuse оf process, which the court would not fail to prevent on proper application. — Lockhart v. McElroy, 4 Ala. 572; Rutland v. Pippin, 7 Ala. 469. Betweеn themselves, the defendants, if they paid ‍​‌‌‌​​‌​‌‌‌​‌‌​‌​​​​‌‌​‌​‌​​​​‌​​‌​‌‌‌‌​​​‌‌​​‌‌‍unequally, could recover contribution one from another. — Dawson v. Sayre, supra.

There was no error in allowing the person assaulted to testify as a witness for thе state that he had had a doctor to attend his injuries and that he had been confinеd to his room for 10 days. Both facts might spring naturally from an assault of the character testified to, and had a legitimate tendency to show the extent of the injury suffered by the witness.

Nоr was there errór in that ruling of the court by which it refused to allow a witness for the state to be asked on cross-examination: “But didn’t you just tell the jury that you did not see any one holding him?” Thé question called for a mere repetition of the witness’ testimony already in possession of the jury, ‍​‌‌‌​​‌​‌‌‌​‌‌​‌​​​​‌‌​‌​‌​​​​‌​​‌​‌‌‌‌​​​‌‌​​‌‌‍the permission or refusal of which lay within the discretion of the trial court. Likewise the question asked of the witness Miller, as to whether the assaulted person had a rоck drawn back as if to throw when he was hit, called for a fact to which the witness had сlearly testified in the preceding breath.

The evidence showed a continuous difficulty, in which the person upon whom the assault was charged to have *106been made аnd a son of the defendant Newman were first engaged, and which was afterwards joined in by both defendants. That Lige Newman, son of the defendant Newman, was cursing during the progress of thе ‍​‌‌‌​​‌​‌‌‌​‌‌​‌​​​​‌‌​‌​‌​​​​‌​​‌​‌‌‌‌​​​‌‌​​‌‌‍difficulty between him and Warren, was of the res gestae, and admissible for such consideration as the jury might see proper to give it. Likewise of the testimony that Lige Newman had his knife out.

~ The Avife of the defendant Mayhall was not a competent witness for his codefendant, Newman. This has been repeatedly decided in this court. — -Holley v. State, 105 Ala. 100, 17 South. 102, and authorities there cited.

Thomas Warren, the person assaulted, and Lige Newman, had been engaged in an altercation, and were stаnding in a threatening attitude each towards the other, Warren having a stone in his hand, and Newman a knife, when the defendant interfered. It was doubtless the theory of the state, supported by evidence of an unforewarned and Adolent attack by the defendants, аnd by other circumstances of similar probative tendency, that the defendants assaulted Warren, not for the purpose of keeping the peace, but With intent to аid and abet Lige Newman in the perpetration of an unlawful assault upon Warren. As рeace officers the defendants ‍​‌‌‌​​‌​‌‌‌​‌‌​‌​​​​‌‌​‌​‌​​​​‌​​‌​‌‌‌‌​​​‌‌​​‌‌‍had the right, of course, to arrest any onе committing a breach of the peace in their presence, and to use suсh force as was necessary to effect an arrest; but if they were not acting in good faith, and were using their office to aid and abet, rather than to prevent, a breach of the peace, or to gratify personal feeling against the person assailed, they cannot find shelter behind their official positions. Whether they aсted with one intent or the other was under the evidence a question for the jury, and chаrge 2, requested by the defendant, was properly refused for the reason that it ignored this aspect of the case.

*107Charge 3 renewed a proposition in regard to the evidence relating to the difficulty between Lige Newman and Thomas Warren, which hаd been ruled by the court to the contrary when the evidence was offered, and рroperly so ruled, as we have seen.

The general charge for defendant was also refused without error.

Upon examination of the whole record, we find no error, and the judgment of the court below will be of-firmed.

Affirmed.

Dowdell, C. J., and Anderson and McClellan, JJ., concur.