Corcoran v. State
| Decision Date | 21 June 1921 |
| Docket Number | 2 Div. 238 |
| Citation | 18 Ala.App. 202,89 So. 835 |
| Parties | CORCORAN v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Perry County; B.M. Miller, Judge.
Alfred S. Corcoran was convicted of assault and battery with a weapon, and he appealed. Reversed and rendered.
Reese & Reese, of Selma, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
On the trial of this case as shown by the record there was no testimony which showed, or tended to show, that the assault complained of was committed with a weapon of any character nor was there any evidence from which this fact could be inferred. While the assault upon the party named was shown without dispute, the evidence conclusively shows without conflict that this assault was committed by the defendant using his fist only, and without employing the use of any weapon whatever.
It thus appears that there was a variance, fatal in its effect in the charge contained in the indictment and the uncontradicted evidence adduced upon this trial. This being true, the defendant was entitled to his discharge. Where an indictment charges an assault and battery with a weapon, the evidence, in order to sustain a conviction, must show that the offense was so committed with a weapon. The law is, however, that under a charge of simple assault and battery a conviction can be sustained even if the proof should develop that in the commission of the act a weapon was used. This question has been decided so many times it is not deemed necessary to further discuss it. Johnson v. State, 35 Ala. 363; Walker v. State, 73 Ala. 17; Crenshaw v. State, 153 Ala. 5, 45 So. 631; Huckabee v. State, 159 Ala. 45, 48 So. 796; Wilson v. State, 7 Ala.App. 66, 60 So. 983.
The pertaining rule is to the effect that where the trial is had in the lower court without a jury, and the evidence is given ore tenus or partly so, the judgment or findings of the trial court will not be disturbed, unless the conclusion reached by the court so sitting is plainly contrary to...
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Henderson v. State
...essentially states previously existing law. The mere showing of the use of a fist does not make out use of a weapon. Corcoran v. State, 18 Ala.App. 202, 89 So. 835 (1921). Normally a shoe does not constitute a deadly weapon under former section 13–1–43, but it could under given circumstance......
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Grider v. State
...definition essentially states previously existing law. The mere showing of a fist does not make out use of a weapon. Corcoran v. State, 18 Ala.App. 202, 89 So. 835 (1921). Normally a shoe does not constitute a deadly weapon under former section 13-1-43, but it could under given circumstance......
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Cozart v. State, 8 Div. 934
...combat; something to fight with.' Moreover, the mere showing of the use of a fist does not make out use of a weapon. Corcoran v. State, 18 Ala.App. 202, 89 So. 835; Bean v. State, 77 Okl.Cr. 73, 138 P.2d 563; State v. Rizor, 353 Mo. 368, 182 S.W.2d Finally, we have considered the doctrine o......
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Brickley v. State
...Appeals any mention of 'a wooden brush.' '. . . the mere showing of the use of a fist does not make out use of a weapon. Corcoran v. State, 18 Ala.App. 202, 89 So. 835; Bean v. State, 77 Okl. Cr. 73, 138 P.2d 563; State v. Rizor, 353 Mo. 368, 182 S.W.2d 525.' Cozart v. State, 42 Ala.App. 53......