Buffalow v. State
| Decision Date | 19 April 1949 |
| Docket Number | 4 Div. 54. |
| Citation | 41 So.2d 417,34 Ala.App. 418 |
| Parties | BUFFALOW v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied May 10, 1949.
E. C. Boswell and Jas. A. Mulkey, both of Geneva, for appellant.
A A. Carmichael, Atty. Gen., and Bernard F. Sykes, Asst. Atty Gen., for the State.
The indictment is as follows:
'The Grand Jury of said County charge that before the finding of this indictment Lee Buffalow, alias Leland Buffalow, alias E L. Buffalow, whose name to the Grand Jury is otherwise unknown, unlawfully and with malice aforethought, did assault Henry Hilliard McDuffie, alias Hill McDuffie, with the intent to murder him, against the peace and dignity of the State of Alabama.'
The substance of the demurrer is that the indictment fails to set forth or show the nature and cause of the accusation, in that it fails to apprise the defendant of the means by which the assault was committed.
The following charge was refused to defendant:
The appellant was convicted of the offense of assault with intent to murder.
The indictment followed the form prescribed by Subsec. 16, Sec. 259, Title 15, Code 1940. It is sufficient against interposed demurrers. Stratford v. State, 32 Ala.App. 249, 24 So.2d 453; Barber v. State, 23 Ala.App. 584, 129 So. 492.
The defendant filed a motion for an order to the circuit solicitor to furnish him a bill of particulars. By this proceeding the appellant sought to have declared the means by which the alleged offense had been committed, specifically 'whether by cutting, shooting or striking.' The court overruled the motion. We reviewed this identical question in the case of Danley v. State, Ala.App., 41 So.2d 414. On the authority of that case we again hold that the motion was properly denied.
There is no necessity to go into a detailed discussion of the facts. Unquestionably the factual issues presented a jury question. This is frankly admitted in brief of appellant's counsel.
The evidence introduced by the State amply supported the verdict of the jury, and the court cannot be cast in error in his action in denying the motion for a new trial.
There are comparatively few questions presented which relate to rulings during the introduction of the evidence.
While the physician who treated the injured party was testifying, the court allowed the solicitor to have the doctor point out to the jury on the body of the prosecuting witness the locations of the knife wounds. During this demonstration the injured person did not make any statement. We certainly do not see any impropriety in this method of explaining to the jury the locations of the various wounds. Clearly it addressed itself to the sound discretion of the trial judge, and in this case no abuse is evident.
The attending physician was allowed to state that in his opinion the inflicted wounds were dangerous to the life of the prosecuting witness. The doctor's qualifications were admitted. The extent and nature of these wounds related to matters of material inquiry. Fowler v. State, 17 Ala.App. 415, 85 So. 828; Ledbetter v. State, 24 Ala.App. 583, 139 So. 299.
Counsel interposed objections to a portion of the court's oral charge. He stated: 'We want to object to that portion of the oral charge where the Court charged the jury that the defendant had to be in imminent danger at the hands of the prosecuting witness in order to invoke the doctrine of self-defense.'
We have held that an 'objection' to part of an oral charge is not equivalent to an 'exception.' Roberson v. State, 25 Ala.App. 270, 144 So. 371; Garrett v. State, 33 Ala.App. 168, 31 So.2d 151.
This aside, the 'objection' referred to a part of the charge only in descriptive terms. This is not sufficient for review. Allford v. State, 31 Ala.App. 62, 12 So.2d 404; Corder v. State, 32 Ala.App. 584, 28 So.2d 651; J. R. Watkins Co. v. Goggans, 242 Ala. 222, 5 So.2d 472.
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American Sur. Co. of N. Y. v. Hooker
...to an 'exception.' Roberson v. State, 25 Ala.App. 270, 144 So. 371; Garrett v. State, 33 Ala.App. 168, 31 So.2d 151; Buffalow v. State, 34 Ala.App. 418, 41 So.2d 417; Horn v. State, 23 Ala.App. 273, 124 So. Be this as it may, assuming but not deciding that the statute had no application, th......
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Meadows v. State
... ... 's physician as to possible death if cuts had reached the jugular vein, the court stated that "it was relevant and proper to prove by the attending physician and surgeon the relative positions of the arteries and veins in the neck and the dangerous character of the wounds." Likewise, in Buffalow v. State, 34 Ala.App. 418, 41 So.2d 417, 419, cert. denied, 252 Ala. 536, 41 So.2d 420 (1949), the court concluded that, in an assault case, the attending physician was properly allowed to state that in his opinion the inflicted wounds were life-threatening, for "[t]he extent and nature of these ... ...
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McArdle v. State
...supports the position that an indictment for assault with intent to murder which follows the code form is sufficient. Buffalow v. State, 34 Ala.App. 418, 41 So.2d 417, cert. denied, 252 Ala. 536, 41 So.2d 420 (1949); Danley v. State, 34 Ala.App. 412, 41 So.2d 414, cert. denied, 252 Ala. 420......
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Burns v. State, 8 Div. 660
...to an 'exception.' Roberson v. State, 25 Ala.App. 270, 144 So. 371; Garrett v. State, 33 Ala.App. 168, 31 So.2d 151; Buffalow v. State, 34 Ala.App. 418, 41 So.2d 417; Horn v. State, 23 Ala.App. 273, 124 So. An example of the transition or evolution taking place is found in Bradley v. Jones,......