Alston v. State

• Decision Date: 15 January 1896
• Citation: Alston v. State, 109 Ala. 51, 20 So. 81 (Ala. 1896)
• Parties: ALSTON v. STATE. [1]
• Court: Alabama Supreme Court

20 So. 81

109 Ala. 51

ALSTON v. STATE. ^[1]

Supreme Court of Alabama

January 15, 1896

Appeal from Shelby countycourt; John S. Leeper, Judge.

The appellant, Rhodes Alston, was convicted of an assault with a gun.As is stated in the opinion, on the trial of the cause there was evidence introduced in behalf of the state tending to show that the defendant was guilty as charged.The defendant introduced testimony tending to show: That he did not commit an assault, or an assault and battery, on Charles Weeks, as charged in the complaint.That on the night the assault was said to have been committed the defendant was at his house, when one Charles Hale, a constable, came here, and asked for Dean Edwards, stating that he had a warrant for him.The defendant woke up Edwards, and told him that the officer had come for him.That, as said Hale was proceeding to read is warrant to Edwards, Edwards made a rush for the door, and was running away from the house, when some one from behind the house shot Edwards down.That the defendant ran out of the house, and asked who shot Edwards, and was informed that Charles Weeks was the man, Weeks stating himself that he did the shooting.That thereupon the defendant called upon other persons present to assist him in arresting said Charles Weeks for shooting Edwards, and that with others, he did arrest him, and turned him over to the constable.And that in making the arrest of Charles Weeksthe defendant did not use more force than was necessary, and that he did not assault him with a gun.The other facts of case are sufficiently stated in the opinion.Among the written charges which were given by the court to the jury at the request of the solicitor were the following: (6)"If the jury believe from the evidence, beyond all reasonable doubt that there was an attempt to assault and beat Charlie Weeks and that the defendant aided or abetted in it, then, if they further believe from the evidence that in the attempt, if there was such attempt, to assault and beat Charlie Weeks some one struck him with a gun, then the defendant is guilty, although he might not have struck the blow."(7)"The court instructs the jury that the least touching of another person, willfully or in anger, is a battery; that every man's person is sacred."It is unnecessary to set out the several charges requested by the defendant.From the judgment of conviction, defendant appeals.Reversed.

Browne & Leeper, for appellant.

Wm. C. Fitts, Atty. Gen., for the State.

COLEMAN J.

The defendant was arrested and brought before the county court to answer the charge of an assault and battery upon Charles Weeks with a gun.The trial not having been concluded on the day on which it began, the court was adjourned to an hour named on the following morning.When court convened pursuant to adjournment, the defendant did not appear, and was not present to answer the charge.The case was withdrawn from the jury, and the jury discharged, and the cause continued.Having been subsequently arrested, and brought before the court for trial, he entered a plea of former jeopardy.The plea set up the facts substantially as stated, with the additional fact that he was detained in consequence of bad roads, and that he arrived at court a short time after the jury had been discharged.The plea does not contain sufficient merit to justify further consideration than to say that the court properly sustained the demurrer to it.Issue was joined upon the plea of not guilty.The prosecution introduced evidence tending to show that the defendant was guilty as charged.The defendant's defense was placed upon the grounds that he acted in self-defense, and that, as a private person, he was justified in arresting Charles Weeks for shooting one Dean Edwards, and that he used no more force than was justifiable in order to make the arrest.The state examined Charles Weeks as a witness, and on cross-examination the defendant asked him if he did not shoot Dean Edwards.The witness declined to answer the question.The defendant insisted that he should answer the question, or state to the court that his answer would tend to criminate him.The court refused to compel the witness to make the statement or to answer the question, to which an exception was reserved.The court ruled properly.If the witness had answered negatively, the answer, prima facie, would have been irrelevant and immaterial.If he had answered affirmatively, the answer would have criminated the witness.A question so framed that a responsive answer prima facie tends to criminate the witness is objectionable, and need not be answered.Ex parte Boscowitz, 84 Ala. 463, 4 So. 279;Burger v. State,83 Ala. 36, 3 So. 319.

At the conclusion of the evidence the court gave a written charge to the jury; having been previously required to do so by the defendant, under the statute.The exception reserved to the charge of the court is in the following language: "The defendant excepted to those parts of the written charge which are as follows."Here follow certain parts of the charge.The bill of exceptions does not show that separate exceptions were reserved to different parts of the charge but that a single exception was reserved to "those parts which are as follows."The rule is well settled that where there is a single exception to a charge as a whole, or to parts, and any part to which the exception applies is good, the exception is unavailable.The bill of exceptions states that "the court, at the request of the solicitor, gave the following written charges, numbered from one to eight, inclusive, to the giving of each and every one of which the defendant duly excepted."The record then states that the defendant requested the court to give "the following written charges, from one to seven, inclusive, to wit," etc."The court refused to give each and every one of the above charges, and the defendant duly excepted."Where the exception is general, the rule is that, if either one of the charges given was properly given, the exception is unavailable, and the same rule applies as to charges refused.Goley v. State,87 Ala. 57, 6 So. 287;Stitt v. State,91 Ala. 10, 8 So. 669;Walker v. State,91 Ala. 76, 9 South, 87;Welsh v. State,97 Ala. 1, 12 So. 275;Horn v. State,98 Ala. 23, 13 So. 329;Jones v. State,96 Ala. 103, 11 So. 399;Farley v. State,72 Ala. 170;Dickey v. State,68 Ala. 508;Williams...