Bowen v. State, 5 Div. 226.
| Citation | 32 Ala.App. 357,26 So.2d 205 |
| Decision Date | 21 May 1946 |
| Docket Number | 5 Div. 226. |
| Parties | BOWEN v. STATE. |
| Court | Alabama Court of Appeals |
Clayton, Clayton & Clayton, of Clayton, and C. T. Reneau, of Wetumpka, for appellant.
Wm N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen for the State.
Appellant was indicted for and by a jury found guilty of assault with intent to murder. His punishment was by the court fixed at twelve years imprisonment in the penitentiary.
Mr Loyal Weldon operates a store located in Elmore County near the Coosa River on the Montgomery-Wetumpka highway. About 7:30 p. m. on January 3, 1945, while the store was yet open for business the appellant, Melvin Bowen, and a companion identified in the record only as 'the other boy,' came into the store. Mr. Weldon was standing by a heater near the rear of the store, and Mrs. Weldon was present in the store also. Mrs. Weldon asked the pair what they would have. Neither replied, but continued on toward the back of the store. Mrs. Weldon again inquired what they would have, and 'the other boy' replied 'I don't know as there is anything in here we want.' Mr. Weldon then told them 'If there is nothing in here you want, just get out.' Immediately 'the other boy', in the language of Mr. Weldon, '* * * made for me.' They scuffled, and again quoting Mr. Weldon, '* * * and as I was about getting the best of him, this boy here' (defendant) When Mr. Weldon called for his pistol both assailants ran. The appellant later that night came to the police station in Montgomery and requested a place to stay for the night. He also informed or admitted to the police the facts of the difficulty at Mr. Weldon's store. 'The other boy' has never been apprehended.
The above testimony constituted the State's case. The appellant presented no evidence. He did however request in writing a charge to the effect that if the jury believed the evidence they could not find the defendant guilty of assault with intent to murder. This requested charge was refused by the court below.
Appellant's motion for a new trial was posited on the refusal of the trial court to give the avove-requested written charge, and also on the grounds that the verdict was contrary to the law, to the evidence, and against the great weight of the evidence. The motion was denied by the court below, appellant duly excepting to such action.
Assault with intent to murder is an assault with an intent to take life, under circumstances which if successful would constitute murder in either degree. Horn v. State, 98 Ala. 23, 13 So. 329; Chestnut v. State, 7 Ala.App. 72, 61 So. 609.
It is clear that the acts of the appellant himself amounted only to an assault and battery. If guilty of the offense of assault with intent to murder his guilt must flow from his status under the common-law concept of principal in the second degree, or more specifically as an aider and abbetor, as such status has been changed and fortified by our statute abolishing the common-law distinction in cases of felony between principals in the first and second degree, and accessories before the fact and principals, and providing that all persons concerned in the commission of a felony must be tried and punished as principals. (See Sec. 14, T. 14, Code of Alabama 1940.) The conduct of appellant's companion is therefore the ultimate factor determining appellant's guilt.
Assault with intent to murder was a high misdemeanor at common law. Our statute imposing severer sanctions converts it into a felony without changing in any way its essential common-law elements.
We find statements in our cases that the facts to be looked to as important in determining this intent to take life, an essential element in the offense of assault with intent to murder, are the character of the assault, the use or lack of a deadly weapon, and the presence or absence of excusing or palliating circumstances. Meredith v. State, 60 Ala. 441; Smith v. State, 88 Ala. 23, 7 So. 103.
Fully recognizing that this intent is an inference to be determined by the jury from the facts, yet this presumption of intent must be inferred from facts proved so clearly as to leave no reasonable doubt of the intent of the accused to commit murder. Horn v. State, supra.
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