Buffalow v. State

• Decision Date: 19 April 1949
• Docket Number: 4 Div. 54.
• Citation: Buffalow v. State, 34 Ala.App. 418, 41 So.2d 417 (Ala. App. 1949)
• Parties: BUFFALOW v. STATE.
• Court: Alabama Court of Appeals

41 So.2d 417

34 Ala.App. 418

BUFFALOW v. STATE.

4 Div. 54.

Alabama Court of Appeals

April 19, 1949

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:

'7.Gentlemen of the Jury, I charge you that unless you believe from the evidence beyond all reasonable doubt that the defendant made an assault as alleged in the indictment, with a premeditated design and malice aforethought to murder Hill McDuffie at the time of the alleged assault, then you cannot convict him of the offense of an assault with intent to murder.'

CARR Judge.

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 casewe 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.

Counsel stated also: 'On that particular point.We have one other matter.You charged the jury, I think, that it only applies to an assault and battery and an assault, but your Honor charged that the defendant in order to invoke the doctrine of self-defense must not fight willingly...