Ray v. State, 41 So. 519

41 So. 519 | Ala. | 1906

ANDERSON, J.

The defendant was indicted and tried under section 4346 of the Code of 1896, which provides: “Any person who com-' mits an assault upon another, with intent to murder,” etc. And in order to convict the defendant it is incumbent upon the state to prove that the assault was committed with the intent to murder ; but/ like malicious intent in murder, it may be inferred by the jury from the character of the assault, the use of a deadly weapon, and the other attendant circumstances. — Wails v. State, 90 Ala. 618, 8 South. 680 (where the case of Smith v. State, 88 Ala. 23, 7 South. 103, is explained and qualified) ; Ogletree v. State, 28 Ala. 693; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; Smith v. State, 83 Ala. 26, 3 South. 551. Section 4856 of the Code of 1896, making a killing with a concealed weapon under certain conditions murder in the second degree, has no appliction to an as-. sault to murder. Under the former the intent to murder is the very essence of the offnse, while the statute with reference to the latter is intended to make certain homicids murder in the second degree, regardless of the intent.

A charge in a case of assault to murder, which predicates a conviction upon the use of a concealed weapon under certain conditions, regardless of the intent, is bad, notwithstanding it would be a good charge in a homicide case; and the case of Scroggins v. State, 120 Ala. 369, 25 South. 180, in so far as it holds that such a charge was good in cases of assault to murder is hereby overruled. The trial court erred in giving charge 1 requested by the state.

“It is not every assault with intent to- kill that is an assault with intent to- commit murder. There must be malice in tlie attempt to take human life to constitute this statutory felony. But, when the assault is made with a deadly weapon in sufficient proximity to inflict a deadly wound, the law implies malice from the use of such instrument, and casts on the defendant the burden of proving that the killing or attempt to kill was in self-defense, or, if successful, would only be manslaughter unless such defensive facts and circumstances are shown in the testimony which proves the killing, or attempi: to kill.” — Williams v. State, 77 Ala. 53; Brown v. State, 142 Ala. 287, 38 South. 268; Hadley v. State, 55 Ala. 31; Sylvester v. State, 72 Ala. 201. And This rule prevails in cases of ’ like kind, as well as cases of murder. It is true the burden of proving the intent is on the state; but, when the state shows a certain kind of assault, as above indicated, it proves, prima facie, its case, unless the other evidence overcomes its prima facie proof; and the law only implies malice after the state proves its prima facie case and in the absence of proof of defensive facts and cirucmstances. There was no error in that part of the oral charge excepted to by the defendant.

Charge A, refused to the defendant, was fully covered by charge 3, given at his request.

While it was immaterial whether the pistol was concealed or not, the trial court committed no reversible error in permitting the witness Sullivan to testify that defendant had on a coat and that he could not see the pistol before he reached back and pulled it, as it was a part of the res gestae. The record discloses no exception by the defendant to the action of the court in permitting the witness to testify that the pistol was concealed.

While the conversation between Blalock and the young lady prior to the difficulty may not have been material or relevant evidence, yet it was proven by the state, and the defendant had the right to bring it all out or get bis version of it. — Gibson v. State, 91 Ala. 69, 9 South. 171 ; Dobson v. State, 86 Ala. 63, 5 South. 485.

There was no error in sustaining the state’s objection to the introduction of the city ordinances upon the present state of the record.

The judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, Simpson, and Denson, JJ., concur. Haralson and Dowdell, JJ., dissent as to charge 1, given at the request of the state, and think it was properly given.