Brown v. State

• Decision Date: 22 December 1904
• Parties: BROWN v. STATE.
• Court: Alabama Supreme Court

38 So. 268

142 Ala. 287

BROWN v. STATE.

Supreme Court of Alabama

December 22, 1904

Appeal from Circuit Court, Cherokee County; J. A. Bilbro, Judge.

Ed. L Brown was convicted of assault with intent to murder, and appeals. Reversed.

It appears from the evidence that a few hours before the commission of the alleged offense Cox and Brown had had a difficulty, in which Cox had struck Brown with a stick. Cox was a boy 16 years of age. The evidence shows that Brown just before the cutting which forms the basis of this prosecution, while in a very drunken state, told Cox to repeat certain remarks which he (Cox) had made. Cox thereupon struck Brown, and Brown then cut Cox with a knife, from the effects of which wound Cox was confined for about 2 1/2 months. The defendant duly excepted to the following portions of the general charge given by the court: "(1) The law presumes malice from the use of a deadly weapon in making an assault, unless the evidence in the case rebuts that presumption; and unless the evidence overcomes such presumption such assault is in law a malicious assault. (2) Did the defendant commit an assault upon Grady Cox with a knife? There is evidence that he did. (3) The law pronounces it a deadly weapon if you should find from the evidence that it cut through the clothing. (4) Before it can be said that the defendant was incapable of forming such intent, it must have been that * * * his mental faculties were so far overcome or stupefied as to render him incapable of distinguishing between right and wrong." The court, at the request of the state, gave the following charges, to which defendant duly excepted: "(3) The defendant is a competent witness in his own behalf, yet in considering his testimony you would be authorized to weigh it in the light of the interest he has in the result of your verdict, together with all the evidence in the case." "(5) If, after considering all the evidence, you have a fixed conviction of the truth of the charge, you are satisfied beyond a reasonable doubt, then it is your duty to convict the defendant. (6) The doubt which will justify an acquittal must be actual and substantial, not a mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt." "(9) If you believe from the evidence beyond a reasonable doubt that the defendant is guilty, though you also believe it possible he is not guilty, you must convict him. (10) You are the sole judges as to the credibility of the witnesses and the weight that should be given to the testimony." The defendant asked the following written charges, which the court refused to give, and to the action of the court in refusing to give each of said charges the defendant then and there separately and severally excepted "(5) The court charges the jury--it is before the jury--that defendand slapped Miller's child and whipped a little negro. (6) The jury must try this case by the evidence, and not by the jokes of counsel." "(9) The law is as much vindicated by turning loose the doubtfully guilty as by convicting the guilty." "(12) If the jury have any reasonable doubt of any material fact in this case, they must acquit the defendant." "(16) If the jury believe from the evidence that if Cox had died it would only have been manslaughter in the first degree, the jury cannot find defendant guilty of an assault with intent to murder. (17) If the jury believe that defendant had made friends with Cox in good faith, and that Cox then began to abuse defendant about the butter, and cursed defendant, and struck him in the face, and that defendant then, inflamed by the blow, suddenly cut Cox with his knife, you cannot convict him of an assault with intent to murder. (18) The court charges the jury if the jury believe from the evidence that Cox was following Brown over the yard, and that Cox suddenly attacked him, and struck him in the face, and if the jury believe that Brown, suddenly inflamed by this blow, cut Cox with knife, defendant cannot be found guilty of an assault with intent to murder." "(20) If the jury have a reasonable doubt, growing out of the evidence, whether defendant assaulted Grady Cox with the specific intent to kill him, you must acquit the defendant."

Burnett Hood & Murphree, for appellant.

Massie Wilson, Atty. Gen., for the State.

ANDERSON J.

Appellant, Brown, was convicted for an assault to murder, and from said judgment of conviction brings this appeal.

While the assaulted party, as a state witness, was testifying, a predicate was laid for proving a contradictory statement, which he denied, and which the defendant proved was made by the said witness Brown. We think the contradictory statement was material, as there was a conflict in the evidence as to who was the aggressor. The defendant asked, in writing, the following charge, numbered 13: "The court charges the jury, if any witnesses have made contradictory statements as to material facts in this case, this may, in the discretion of the jury, create a reasonable doubt as to the truth of the evidence of such witness;" which was refused, and the action of the court in refusing said charge is among the assignments of error. This charge has been held good in Gregg v. State, 106 Ala. 44, 17 So. 321, and Williams v. State, 114 Ala. 19, 21 So. 993, and which seems to be based upon doctrine in the case of Washington v. State, 58 Ala. 355. We do not think the charge in question asserts a correct legal proposition, and Gregg v. State and Williams v. State, supra, are hereby overruled, and said charge 13 was properly refused.

The length of time that the assaulted party is confined as a result of the wound inflicted on him by the defendant is material to the issue as to whether or not there was an intent to kill, as the extent of the wound may shed light upon the subject, and would be a proper consideration for the jury in determining the intent. The intent may be inferred from the character of the assault, the want or use of a deadly weapon, and the presence or absence of excusing or palliating facts or circumstances. Meridith v. State, 60 Ala. 441; Jackson v. State, 94 Ala. 89, 10 So. 509. There was no error in permitting Cox to testify how long he was confined from the effects of said wound.

The objection to the proof of the good character of the witness Grady Cox was properly overruled, as he had testified as a witness, and had been impeached by the defendant as to contradictory statements, and it was permissible to sustain his credibility by proof of good character. Haley v. State, 63 Ala. 89; 2 Brick. Digest, 547, § 104. If this rule did not prevail, the only ground assigned to the objection of the testimony of the elder Cox was because he was the father of the witness whose character was in question. We know of no rule of law prohibiting the father from testifying, either in behalf of his son, or his character when the same has been assailed.

It appears from the record that the defendant announced "Not ready for trial," owing to the absence of several witnesses, and was put upon a showing for said witnesses. The showings were prepared, and admitted by the state, and the trial was entered into. After the trial was in progress, one of the witnesses (Miss McCoy) for whom a showing had been made appeared. It seems that the defendant neither offered his showing nor introduced...