Bailey v. State

• Decision Date: 07 April 1931
• Docket Number: 6 Div. 771.
• Citation: Bailey v. State, 24 Ala.App. 339, 135 So. 407 (Ala. App. 1931)
• Parties: BAILEY v. STATE.
• Court: Alabama Court of Appeals

135 So. 407

24 Ala.App. 339

BAILEY v. STATE.

6 Div. 771.

Court of Appeals of Alabama

April 7, 1931

Rehearing Denied June 9, 1931.

Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.

John Bailey was convicted of assault and battery, and he appeals.

Affirmed.

James Forman and Fort, Beddow & Ray, all of Birmingham, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

BRICKEN P.J.

The indictment charged this appellant with the offense of assault to murder Hugh McSweeney, etc., He was tried upon this indictment, and the trial resulted in a verdict by the jury of guilty of assault and battery and assessed a fine of $100. A judgment of conviction, in accordance with the verdict, was pronounced and entered, from which this appeal was taken.

The evidence, without dispute, established the corpus delicti. It tended to show that on the night in question, about 11:30 o'clock, several men went to the McSweeney home represented themselves as officers, and stated they had a warrant of arrest for McSweeney. Made him get up out of bed and dressed and carried him away in an automobile some three or four miles and severely whipped him and beat him. No question is involved as to time or venue. The commission of the crime being shown by the evidence without dispute, the material inquiry on this trial was whether or not this appellant was one of the men who perpetrated the offense. McSweeney, the injured party, testified that the defendant (this appellant) did commit the offense. Other witnesses gave evidence of like import. This appellant denied that he committed the offense and insisted he had no knowledge of or connection therewith. He testified he was at his own home during all the night the crime was committed and knew nothing about it until the next day, when he was told by a neighbor of the flogging of McSweeney, the night before.

This conflict in the evidence presented a jury question; the material fact as to this appellant being the perpetrator of the crime was in sharp conflict, and this case rests upon the decision of this question.

No special written charges were requested, and no motion for a new trial was made. The points of decision relied upon to effect a reversal are confined to several exceptions reserved to the court's rulings upon the admission of testimony.

The first insistence of error is based upon the exception reserved to the ruling of the court in allowing the state to show by the injured party that he was confined to his bed on account of the battery committed on him. This ruling was without error. Holmes v. State (Ala. Sup.) 39 So 569, 570; Jackson v. State, 19 Ala. App. 339, 97 So 260. In the Holmes Case, supra, the Supreme Court of Alabama said: "It was competent to show that Maggie Stansell was confined to her bed on account of the battery committed on her and the length of time she was so confined." In Jackson's Case, supra, this court said: "In a prosecution for assault or assault to murder it is always relevant to show the extent of the wounds as being a part of the res gestæ, and the duration of recovery is also relevant as tending to prove the severity of the...