Craven v. State, 8 Div. 554

CourtAlabama Court of Appeals
Writing for the CourtBRICKEN, P.J.
Citation22 Ala.App. 39,111 So. 767
PartiesCRAVEN v. STATE.
Decision Date22 March 1927
Docket Number8 Div. 554

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. [111 So. 769]

[22 Ala.App. 40] Horace C. Wilkinson and J.R. McElroy, both of Birmingham, for appellant.

[22 Ala.App. 41] 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 [22 Ala.App. 42] 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 [111 So. 770] 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...

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40 practice notes
  • Weatherford v. State, 5 Div. 428
    • United States
    • Alabama Court of Criminal Appeals
    • February 20, 1979
    ...the adverse party and explain anything to his detriment. Gilbert v. City of Montgomery, 337 So.2d 140 (Ala.Cr.App.1976); Craven v. State, 22 Ala.App. 39, 111 So. 767 (1927). A party who has brought out evidence on a certain subject has no valid complaint as to the action of the trial court ......
  • Elliott v. State, 1831
    • United States
    • United States State Supreme Court of Wyoming
    • March 20, 1931
    ...to and including simple assault. The contention is not supported by any authority." Of similar purport is the case of Craven v. State, 22 Ala.App. 39, 111 So. 767. The following excerpt from the opinion of the court sets forth both the facts and the law as applied, as they are pertinent her......
  • Clayton v. State, 6 Div. 303.
    • United States
    • Alabama Court of Appeals
    • April 16, 1929
    ...to have inquired of the witness if excessive drinking of intoxicating liquor did not contribute to the condition. Craven v. State, 22 Ala. App. 39, 111 So. 767; Taylor v. State, 20 Ala. App. 161, 101 So. 160. The state was permitted over timely objection and exception of defendant to prove ......
  • Sims v. Callahan, 6 Div. 290
    • United States
    • Supreme Court of Alabama
    • May 21, 1959
    ...or otherwise violating prohibition laws--Lakey v. State, 206 Ala. 180, 89 So. 605. Doing Business Without License--Craven v. State, 22 Ala.App. 39, 111 So. Trespass to Land--United States Lumber & Cotton Co. v. Cole, 202 Ala. 688, 81 So. 664. Vagrancy (in absence of showing of act character......
  • Request a trial to view additional results
40 cases
  • Weatherford v. State, 5 Div. 428
    • United States
    • Alabama Court of Criminal Appeals
    • February 20, 1979
    ...the adverse party and explain anything to his detriment. Gilbert v. City of Montgomery, 337 So.2d 140 (Ala.Cr.App.1976); Craven v. State, 22 Ala.App. 39, 111 So. 767 (1927). A party who has brought out evidence on a certain subject has no valid complaint as to the action of the trial court ......
  • Elliott v. State, 1831
    • United States
    • United States State Supreme Court of Wyoming
    • March 20, 1931
    ...to and including simple assault. The contention is not supported by any authority." Of similar purport is the case of Craven v. State, 22 Ala.App. 39, 111 So. 767. The following excerpt from the opinion of the court sets forth both the facts and the law as applied, as they are pertinent her......
  • Clayton v. State, 6 Div. 303.
    • United States
    • Alabama Court of Appeals
    • April 16, 1929
    ...to have inquired of the witness if excessive drinking of intoxicating liquor did not contribute to the condition. Craven v. State, 22 Ala. App. 39, 111 So. 767; Taylor v. State, 20 Ala. App. 161, 101 So. 160. The state was permitted over timely objection and exception of defendant to prove ......
  • Sims v. Callahan, 6 Div. 290
    • United States
    • Supreme Court of Alabama
    • May 21, 1959
    ...or otherwise violating prohibition laws--Lakey v. State, 206 Ala. 180, 89 So. 605. Doing Business Without License--Craven v. State, 22 Ala.App. 39, 111 So. Trespass to Land--United States Lumber & Cotton Co. v. Cole, 202 Ala. 688, 81 So. 664. Vagrancy (in absence of showing of act character......
  • Request a trial to view additional results

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