8 So. 688 (Ala. 1891), Fonville v. State

Citation:8 So. 688, 91 Ala. 39
Opinion Judge:COLEMAN, J.
Attorney:J. M. Whitehead, for appellant. W. L. Martin, Atty. Gen., for the State.
Case Date:January 07, 1891
Court:Supreme Court of Alabama

Page 688

8 So. 688 (Ala. 1891)

91 Ala. 39




Supreme Court of Alabama

January 7, 1891

Appeal from circuit court, Butler county; JOHN P. HUBBARD, Judge.

The appellant was indicted, tried, and convicted for an assault with intent to murder one Comer. The evidence in behalf of the state and the defendant is in direct conflict as to the circumstances of the alleged assault. The evidence for the state tended to show that, while the defendant was standing on the street in Georgiana, in Butler county, the said Comer passed by. The defendant remarked to him, "I am not afraid of you, nor any other G___ d___ white man. I dare you to resent it." That the defendant followed the said Comer up, and finally struck him in the face with his hand, in which there was a knife, and then cut him. The testimony for the defendant tended to show that the said Comer and one Jackson got into a dispute, and, the defendant passing by, said Jackson asked defendant if a man did not have the right to protect his own house, and, upon the defendant answering that he did, the said Comer struck the defendant on the head with a knife, and then on his face, cutting him every time; and that thereupon the defendant turned and cut the said Comer in self-defense. On the examination of two different state witnesses the defendant, on cross-examination, asked them: "Did Comer have a difficulty with another party at Georgiana on the same day at or near the time of the difficulty with the defendant, in which Comer was said to have killed a man named York?" Upon objection to this question by the state, the court sustained the objection, and the defendant duly excepted. When the solicitor asked one of the witnesses, in reference to the two absent witnesses whose testimony was admitted on a showing, "Are they white or colored, and how old are they?" the bill of exceptions states that "the defendant objected to this question because it called for an answer that was irrelevant and illegal. The court overruled the objection, and the defendant excepted." The other rulings on the evidence are sufficiently set forth in the opinion of this court. There was also evidence tending to show that at the time of the assault the defendant was intoxicated. Upon the evidence, as adduced, the defendant requested the court to give the following written charges, and duly excepted to the refusal to give each one: "(1) If the testimony shows two theories, one tending to guilt and the other innocence, and both are reasonable, the jury must accept that theory consistent with innocence...

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