Craven v. State

• Decision Date: 22 March 1927
• Docket Number: 8 Div. 554
• Citation: 22 Ala.App. 39,111 So. 767
• Parties: CRAVEN v. STATE.
• Court: Alabama Court of Appeals

111 So. 767

22 Ala.App. 39

CRAVEN v. STATE.

8 Div. 554

Court of Appeals of Alabama

March 22, 1927

Appeal from Circuit Court, Franklin County; Norman Gunn, Special Judge.

Andrew J. Craven was convicted of an assault with a weapon, and he appeals. Reversed and remanded.

Horace C. Wilkinson and J.R. McElroy, both of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

This appellant was indicted for the offense of an assault with intent to murder Claude Lawler, the indictment being in Code form. He was convicted by the jury of the offense of an assault with a weapon, and the jury assessed his fine at $500.

Errors are assigned, 90 in number, and by assignments 1 and 2 appellant insists, and elaborately argues, that the court erred in overruling the motion of defendant to arrest the judgment in this cause and to discharge the defendant after such arrest of judgment had been entered. The motion in arrest of judgment was predicated upon the ground:

"That an indictment for an assault with intent to murder, in Code form, that is to say, without expressly specifying the mode in which the assault is alleged to have been committed, does not comprehend or include a charge of assault with a weapon, and that the jury having found the defendant guilty of a charge not comprehended in the indictment and thereafter having been discharged, that the defendant had been placed in jeopardy and had been convicted of an offense of which he had not been charged in the indictment, and therefore the court had no right to enter a judgment upon the jury's verdict and that the defendant was entitled to his discharge."

That there is no merit in this insistence is too well settled for discussion. In the first place by express terms of the statute it is provided: When an indictment charges an offense of which there are different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto; and the defendant may also be found guilty of any offense which is necessarily included in that with which he is charged, whether it be a felony, or a misdemeanor. Code 1923, § 8697. That an assault with a weapon is included in the charge of an assault with intent to murder has been expressly decided in this State. Jones v State, 79 Ala. 23; Horn v. State, 98 Ala. 23 13 So. 329; Curry v. State, 120 Ala. 366, 25 So 237; Payne v. State, 148 Ala. 609, 42 So. 988; Lovett v. State, 10 Ala.App. 72, 64 So. 643.

Assignments of error 1 to 6, inclusive, have reference to the above insistence. From what has been said they cannot be sustained, as each of the court's rulings in this connection were in conformity with the law as it exists in this state.

The undisputed evidence in this case disclosed that the defendant, a man nearly 63 years of age, lived in Franklin county, Ala., and had been living in Spruce Pine, in said county, for 27 years. He undertook to prove his general reputation in said county by Judge J.D. Petree, probate judge of said county, which witness testified he had known the defendant about 10 or 15 years. He was then asked the following questions by counsel for defendant: "Do you know his (defendant's) general reputation?" Also: "Do you know his general reputation in this county?" The court sustained the state's objections to said questions, and in the latter ruling committed reversible error. The defendant made known to the court that he offered to show by this witness that he knew the general reputation of the defendant in the county, and that such reputation was good, etc. In the case of Sullivan v. State, 66 Ala. 48, Chief Justice Stone for the court said:

"The character which affects the question of guilt or credibility, in legal phrase, is almost the synonym of reputation."

That it is always permissible in the trial of a criminal case for the accused to adduce evidence of his general character needs no discussion. In all criminal prosecutions, whether for felony or misdemeanor, the accused may offer evidence of his previous good character, not only where a doubt exists on the other proof, but even to generate a doubt as to his guilt; and this inquiry need not be limited to the community or neighborhood where the defendant lives, but may be extended to any community or society or neighborhood in which he was known or has a well-known or established reputation. The term "community" or "neighborhood" is not susceptible of exact geographical definition, but means in a general way where the person is well known and has established a reputation. The inquiry is not necessarily confined to the domicile or residence of the defendant, but may extend to any community or society in which he has a well-known or established reputation. Marasso v. State, 18 Ala.App. 488, 93 So. 226; Pate v. State, 162 Ala. 32, 70 So. 357; McQueen v. State, 108 Ala. 55, 18 So. 843. We take it that the court in this ruling was laboring under the impression that the evidence sought should be limited to the community where the defendant resided, and thus fell into error. We are of the opinion that where a defendant (or witness) has resided for a number of years in a certain county, is well known therein, and has established a general reputation in said county, an inquiry relative thereto, under a proper predicate, would be permissible. Boswell v. Blackman, 12 Ga. 593.

A.P. Nelson, sheriff of Franklin county, testified:

"I know the general standing of the defendant in that community prior to this shooting scrape. I would say it was good."

On his cross-examination, the solicitor asked the witness:

"Q. Now, don't you know that he has the reputation in Spruce Pine of being quarrelsome and fussy? A. To some extent; yes, sir.

"Q. To a very large extent, doesn't he? A. Well, there are some of them consider him so. He is by one class."

The relevancy of this inquiry was not raised; but on his redirect examination the defendant propounded to this witness the question:

"Q. Who has he got that reputation of being fussy and quarrelsome with? A. Well, he stands well with the best citizenship of Spruce Pine. He associated with the best citizenship and stands well, except with the fussy, quarrelsome folks, and the whisky folks."

Upon motion of the state the court excluded the above answer. In this ruling there was error. There was no objection to the question propounded, and no grounds stated upon the motion to exclude. The answer was responsive to the question. Moreover, it was relevant as in rebuttal of matters brought out by the state on the cross-examination of this witness. A party to a cause upon trial, which includes the state, is not allowed to speculate upon the answer of a witness, and in the absence of proper and timely objection to a question, a motion to exclude a responsive answer will not lie. Furthermore, it is elementary that when a matter has been gone into by one party to a cause, the other side likewise has a right to go into the same matter and to explain away anything, if he can, that may have been there brought out to his detriment.

We would not predicate reversible error upon the ruling of the court complained of in assignment of error 13, wherein the court would not allow the defendant to ask Lawler, the alleged injured party, on his cross-examination, "Have you ever been convicted in the courts of this county for an offense involving moral turpitude?" The statute does provide that a witness may be examined touching his conviction for crime, if the crime involved moral turpitude. Code 1923, §§ 7722, 7723. But the vice of the question here is that it was too general and called for the conclusion or judgment of the witness as to what crimes involved moral turpitude, and this is a question of law not without difficulty in many instances even to the courts of the land. It cannot be doubted that the better practice would be to propound the direct question in instances of this character, naming the alleged offense, so that the court itself could decide or determine if it came within the terms of the statute.

Assignments of errors 14, 15, 16, and 17 are wholly without merit. They refer to rulings of the court in sustaining objection of the state to questions propounded by defendant to Lawler wherein he was asked:

(1) "Have you ever been convicted of using abusive and obscene language?"

(2) "Have you ever been convicted of an assault and battery?"

(3) "Have you ever been convicted of operating a sawmill without a license?"

(4) "Have you ever been convicted of public drunkenness?"

As stated, these inquiries were immaterial and inadmissible upon the trial of this case and the court properly so held.

So, also, the questions propounded to said Lawler as set out in assignments of errors 19 and 20, to wit:

"You begun to have trouble right after you had gotten into that neighborhood, didn't you?"

Also: "And its been getting worse instead of better?"

These questions were improper, and had no place upon this trial.

The evidence was in sharp dispute as to who was the aggressor in this case and as to who provoked the difficulty. The evidence for the state tended to show that the defendant provoked the difficulty and that he was the aggressor; the evidence for the defendant tended to show that Lawler, the prosecuting witness, was the aggressor and that he provoked the difficulty. Also the evidence for the defendant tended to show the presence of every element of self-defense. Under this state of the evidence, questions were propounded by the defendant, which are made the basis of assignments Nos. 20, 21, and 22, for the purpose of showing ill feeling and hostile acts previous to the difficulty, by the prosecuting witness towards the defendant.

Question to witness...