Davis v. State

• Decision Date: 30 June 1924
• Docket Number: 6 Div. 476.
• Citation: 101 So. 171,20 Ala.App. 131
• Parties: DAVIS v. STATE.
• Court: Alabama Court of Appeals

101 So. 171

20 Ala.App. 131

DAVIS v. STATE.

6 Div. 476.

Court of Appeals of Alabama

June 30, 1924

Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.

Willis Davis was convicted of assault with intent to murder, and appeals. Reversed and remanded.

E. L Dodson, of Tuscaloosa, for appellant.

Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen for the State.

BRICKEN, P.J.

This defendant was charged by indictment, and convicted, for the offense of assault with intent to murder; the specific charge being that he unlawfully and with malice aforethought did assault Arthur Gentry with the intent to murder him. Under the defendant's plea of "Not guilty," the issues were clearly defined, but notwithstanding this the evidence was permitted to take a wide scope, under the court's rulings, and the main trial seems to have centered around the proposition as to whether or not this defendant was guilty of a violation of the prohibition law.

The facts as shown by the record disclose that this defendant was sitting upon a log by the roadside about 9 o'clock at night (as he stated waiting for a friend who had stopped to talk with a person to come on). While he was thus sitting alone, the sheriff and his two deputies approached him, one of them flashed a light in his face, and the shooting between the parties immediately followed. The evidence as to the details of the shooting was in sharp conflict, but there was no dispute that all three of the officers at very close proximity fired upon the defendant with their revolvers and grievously wounded him in several portions of his body. In fact from the undisputed evidence it appears almost miraculous that the defendant was not killed by the many shots fired at him from close range (8 or 10 feet) by the three officers. It is, however, a clear deduction from the testimony that as a result of the rencounter this defendant has been maimed for life. It was claimed by Gentry, the alleged injured party, that he received a slight wound on his knuckle which was described by Dr. Newton, who examined it as, "a slight injury on his knuckle on the right hand near the knuckle joint, middle finger, between it and next finger, it was just a slight abrasion"; and he further stated, "But if I had seen that wound after looking at it as I did and had no information, I would not say that it was a gunshot wound; I found nothing about it to indicate that it was a gunshot wound."

The defendant, who was corroborated by other testimony, denied shooting at the officers at all. The fact as to whether he did so fire at them was, under the evidence, a question for the jury. But it does seem strange, in fact remarkable, if this defendant did fire at the officers with an automatic shotgun under the conditions and circumstances as related by each of them, that no more injury was done as a result of such fire than a mere abrasion on the middle knuckle of one of them, Gentry. The sheriff's version of the shooting was as follows:

"We were walking down the road abreast, Mr. Gentry in the center. At the time the gun fired we were between 8 and 12 feet from the defendant. Mr. Gentry had a slight wound on the knuckle. Mr. Davis shot him with an automatic shotgun. When Mr. Davis fired the shotgun I fired just as quickly as I could on Mr. Davis."

Numerous exceptions were reserved to the rulings of the court pending the trial. Counsel for appellant has assigned errors; there being 48 assignments noted on the record.

Appellant complains bitterly of the apparent antagonistic attitude of the court towards him, and insists that his substantial rights were thus manifestly injuriously affected. We note from the record the court stated to the solicitor in one instance "I am sure you will connect it."

Also the following statement:

"What is the use of going into matters of that kind? You understand the law is clear that an officer cannot arrest a man without a warrant, unless he finds the party committing a misdemeanor in his presence at that time, or unless there has been a felony committed and the officer has good reason to believe he is guilty of having committed that act. If you undertake to show an arrest was made, there wasn't any arrest made until after the shot was fired, according to the evidence, and no attempt to make any arrest until after the shot was fired, so of course the defendant didn't have any right to shoot him."

As to these statements by the court we can only say that, however meritorious these insistencies may appear, and, if it be conceded that as a result of such statements the substantial rights of defendant were injuriously affected, or might have been, yet we are without authority to grant the relief sought in this connection, as no exception appears to have been reserved to either of the statements complained of, and, in the absence of an exception, we cannot put the court in error.

It is without dispute that the officers had no warrant of arrest for defendant, and up to the time of the alleged shooting it is not contended that the defendant committed a misdemeanor in the presence of the officers, nor was it contended that a felony had been committed and that the officers had good reason to believe the defendant had committed a felony. Yet the injured party, Gentry, testified, "We went down there to arrest these people" (the defendant and one Hunnicutt). Under this status there are many expressions in the case of Cobb v. State (Ala. App.) 97 So. 779 peculiarly applicable to the case at bar. Under the rule laid down in that case the officers had no right to arrest the defendant, or to shoot him, unless, of course, such shooting was in...