Tarver v. State, 43 Ala. 354

Tarver v. State

43 Ala. 354 | Ala. | 1869

PECK, C. J.,

(after stating facts as above.) — 1. It was competent for the State to prove the fact of the previous difficulty, although not necessary, for the purposes stated in this case ; that is, to prove malice on the part of the accused, as an$[ old grudge and threats were admitted by him. But the State should not have been permitted to prove the circumstances of the former difficulty. '

The circumstances of said former difficulty consisted not only of what was said and done by the accused, but also of what was said and done, on the occasion, by the witness.

What the witness, said and did, should not be permitted to injui’e the accused on this trial.

*356It might, and probably would, have misled and prejudiced the jury against the accused. For these reasons, this evidence should not have been permitted to go to the jury. The court should have excluded it from them.

2. An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.

To constitute an assault with a gun or pistol, it is necessary that the gun or pistol should be presented at the party charged to be assaulted, within the distance to which the gun or pistol may do execution.

Roscoe on Criminal Evidence, top page 286, says: There must be an actual presenting of the gun or pistol, to make out the assault.

Therefore, in this case, if there was, in fact, no actual presenting of the pistol at the witness, there was, legally, no assault, no offense, and, consequently, should be no conviction.

The charge asked should have been given by the court, and in refusing to give it, the court fell into an error.

The court also erred in admitting evidence of the circumstances of the previous difficulty, and in refusing to charge the jury, that if they believed, from the evidence, that the accused did not present the pistol at the said William M. Russell, they should acquit him. Let the judgment of the court below be reversed, and the cause remanded for a new trial.