Collins v. State

• Decision Date: 11 August 1925
• Docket Number: 4 Div. 14
• Citation: 21 Ala.App. 152,106 So. 341
• Parties: COLLINS v. STATE.
• Court: Alabama Court of Appeals

106 So. 341

21 Ala.App. 152

COLLINS v. STATE.

4 Div. 14

Court of Appeals of Alabama

August 11, 1925

Rehearing Denied Oct. 27, 1925

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Sam Collins was convicted of assault with intent to murder, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Collins, 106 So. 344.

Reid &amp Doster, of Dothan, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The defendant was indicted, tried, and convicted of assault with intent to murder. He was sentenced to the penitentiary for a term of years, from which judgment this appeal is taken.

Appellant's chief insistence on appeal is that the trial court erred in refusing requested charges 1 and 3. Both charges are to the effect that if there was sufficient provocation to excite sudden passion, and defendant acted under such passion, then the presumption is that passion disturbed the sway of reason and made him regardless of his act to such an extent that he could not be convicted of assault to murder, but, at the most, assault and battery. Those two charges were abstract under the evidence in this case, and their refusal was without error. There was no evidence of any word or act on the part of the injured party calculated to arouse sudden passion in the defendant, other than certain testimony that the party assaulted called defendant's wife a liar just prior to the assault. The evidence for the state showed a most serious and aggravated assault upon one Andrew Gamble, made after he had fallen to the ground while running for his life and being pursued by the defendant with an open knife in his hand, with which deadly weapon defendant grievously cut Gamble while he was lying on the ground. The court properly charged the jury that opprobrious and insulting words, no matter how offensive, and applied directly to the assailant, can never reduce an unlawful homicide from murder to manslaughter. In other words, mere words are not of themselves sufficient to repel the presumption of malice. On the same principle, when a felonious assault is charged, as here, mere words are not sufficient to repel the presumption of malice arising from the use of a deadly weapon. Opprobrious words alone are not in law a sufficient provocation to excite such a sudden passion that will deprive an assault of its felonious character.

"What would be adequate provocation to deprive an assault with intent to murder of its felonious character is settled, by analogy, in the decisions of this court based on indictments for murder. In such cases it has been held that heat of passion, per se, never reduces murder to manslaughter, and that mere words, however opprobrious, will not have that effect; that the provocation must at least amount to personal violence, or be accompanied by acts evincing an intention to resort to immediate force, and the fatal blow must be the unpremeditated result of the passion thus aroused." Jones v. State, 96 Ala. 102, 11 So. 399, and cases there cited.

This court held in Chestnut v. State, 7 Ala.App. 72, 61 So. 609, that "sudden passion from an immediate insult" is not enough to repel the imputation of malice under a charge for assault with intent to murder, citing Lane v. State, 85 Ala. 11, 4 So. 730. Appellant relies upon the case of Smith v. State, 86 Ala. 28 5 So. 478, from which case these charges were substantially copied. Had there been in this case, as there was in the Smith Case, evidence to show that the defendant acted only in prevention or defense of a very dangerous assault about to be committed on him by the person assaulted, or if the evidence had shown that the opprobrious words were accompanied by acts evincing an intention on the part of Gamble to resort to immediate violence, then another question might be presented.

We can see no reason why the court refused charge 4 requested in writing by defendant. Prater v. State, 193 Ala. 40 69 So. 539. However, we do not regard its refusal in this case as being hurtful to the substantial rights of defendant. In the first place, there was no contention or insistence that the indictment should be regarded as evidence against defendant, nor was there any suggestion or intimation in argument or otherwise that it should so be regarded or considered. For this reason the charge related to a matter which might be termed wholly abstract. Furthermore, there were a large number of eyewitnesses to the assault complained of, who testified upon the trial of this cause; and while the evidence...