Bodine v. State

• Decision Date: 09 April 1901
• Citation: 129 Ala. 106,29 So. 926
• Parties: BODINE v. STATE.
• Court: Alabama Supreme Court

29 So. 926

129 Ala. 106

BODINE v. STATE.

Supreme Court of Alabama

April 9, 1901

Appeal from circuit court, Marshall county; J. A. Bilbra, Judge.

Sol Bodine was convicted of assault with intent to kill, and appeals. Reversed.

The indictment as contained in the record on the present appeal charged that "Sol Bodino unlawfully, and with malice aforethought, did assault William M. Fowler with a gun, with the intent to murder him," etc. The defendant filed a plea in abatement, in which he set up that he was indicted by the name of Sol Bodino, while his true name is "Sol Bodine, and that he has never been known or called by the name of Sol Bodino." The judgment entry showing the rulings of the court upon this plea is copied in the opinion. On the trial of the case, W. M. Fowler, as a witness for the state, testified that the defendant came to the field where witness was plowing, and called the witness to the fence that, as he approached the defendant, the defendant made a complaint against him about a cow trespassing upon the defendant's property, and stated that he had come to settle the matter with him, and that thereupon the defendant raised a gun to his shoulder, and fired upon the witness. This testimony was corroborated by the testimony of another witness introduced by the state. The evidence further shows that after the shooting the defendant went some distance down a road from the field, and then went into "the bottoms," where one Dearman, the brother-in-law of Fowler, was at work; and that when he left Dearman he went to Blount county. The defendant offered to show that when he went to where Dearman was he told Dearman to go and tell Fowler that he did not shoot at him, but that the gun went off accidentally. The state objected to this testimony, the court sustained the objection, and the defendant duly excepted. The rulings of the court in reference to the testimony of the witness Dodd are shown in the opinion. The defendant testified, as a witness in his own behalf, that he did not shoot Fowler; that, as he was talking to Fowler, with a gun lying across his saddle, the mule which he was riding moved suddenly, and the gun started to fall, and in catching the gun it fired accidentally. It was further shown by the evidence that the defendant was a man of good, peaceable quiet character. The bill of exceptions recites that "The solicitor, in his speech, said defendant would swear falsely on account of his interest in the case; that the penitentiary was staring him in the face, and that the jury knew he would swear falsely to keep out of the penitentiary." The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that they may look to the fact, if it be a fact, that defendant is a man of good character, in determining what weight they will give to the testimony of the defendant." (2) "The court charges the jury that, in the light of the argument of counsel for the prosecution that the defendant's testimony is not to be believed because of his interest, and that, therefore, the defendant would willfully testify falsely in the case, the jury may look to the fact, if it be a fact, that the defendant is a man of good general character, in determining what weight the jury will give defendant's testimony." (3) "The court charges the jury that if, after considering all of the evidence, they could give a reason, arising out of any reasonable aspect of the facts proven, for acquitting the defendant, then they should acquit him." (4) "The court charges the jury that if, after considering all the evidence in the case, the mind of the jury is left in a state of confusion as to any fact necessary to constitute the defendant's guilt, then they must find him not guilty." (5) "The court charges the jury that, though evidence tending to show flight is a matter to be considered by the jury, yet it is of weak and inconclusive character. It may not be evidence of guilt at all. If it proceeded from fear of violence from Fowler then it is no evidence at all of guilt." (6) "The court charges the jury that they should not capriciously reject the testimony of the defendant simply because he is interested, but,...