Dempsey v. State
| Citation | 15 Ala.App. 199,72 So. 773 |
| Decision Date | 07 September 1916 |
| Docket Number | 7 Div. 417 |
| Parties | DEMPSEY v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from City Court of Gadsden; James A. Bilbro, Judge.
A.J Dempsey, alias "Bird" Dempsey, was convicted of an assault with intent to murder, and he appeals. Affirmed.
The person assaulted was one Wilson, and the weapon used was a knife. The other facts sufficiently appear. The following are the charges refused to defendant as noted in the opinion:
Culli & Martin, of Gadsden, for appellant.
William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty Gen., for the State.
The defendant was tried and convicted of an assault with intent to murder.
There is no error shown in the court's ruling in permitting the state to show by its witness Luther Wilson the declaration made by the defendant during, or just at the termination of difficulty, to his wife, "to bring his gun; that he had killed one man [applying a vile epithet] and was going to kill another." This evidence was competent, and clearly admissible as part of the res gestae of the transaction, and was, in fact, part of and explanatory of, the circumstances attending the pursuit of the injured party by the defendant at the termination of the main difficulty when the cutting took place, and this part of the transaction had been admitted in evidence without objection as part of the main transaction. The following authorities will be found to support the holding that the defendant's declaration was admissible as part of the res gestae: Campbell v State, 133 Ala. 81, 31 So. 802, 91 Am.St.Rep. 17; Maddox v. State, 159 Ala. 53, 48 So. 689; Harris v. State, 177 Ala. 22, 59 So. 205.
The declaration was also admissible for the purpose of showing the hostility of the defendant towards the injured party. Smith v. State, 183 Ala. 10, 62 So. 864.
The acts of the defendant in seeking to get witnesses to testify in his favor were properly admitted. If the defendant's statements to these witnesses were not capable of construction as being an effort upon his part to suppress the truth, or pervert the course of justice, the admission of this testimony was not of a harmful or injurious nature that would constitute reversible error; and, if they were, they were properly admitted to be considered by the jury in connection with any explanation the defendant might offer of an innocent meaning or intention upon his part. Smith v. State, 183 Ala. 10, 62 So. 864.
The refused charges requested in writing by the defendant and the general charge of the court are not set out in the record, as required by the provisions of the act of the Legislature approved September 25, 1915 (Acts 1915, p. 815), but are incorporated only in the bill of exceptions. Under the rulings of the Supreme Court in quite a long line of cases, holding that the proceedings of the lower court that are required to be made a part of the record proper are not reviewable when they appear only in the bill of exceptions, it might be that since the enactment above referred to, requiring the general and refused and given charges to be made a part of the record proper, in the condition of this transcript the general and refused charges, not being set out in the record, are not presented for review. But, however that may be, we have examined these charges, and, finding no reversible error, we review them without extended detail discussion.
It is true that not every assault which would be murder if it resulted in death is an assault with an intent to murder. But when the assault is upon a particular person, as in the instant case, the inquiry may properly be confined to the question whether or not the crime would have been murder if the assault had resulted fatally; and the exception to the court's oral charge on this point is not well taken....
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Bankhead v. State
...of the homicide and admissible. Bone v. State, 8 Ala.App. 59, 62 So. 455; Freeman v. State, 30 Ala.App. 99, 1 So.2d 917; Dempsey v. State, 15 Ala.App. 199, 72 So. 773; Shearer v. State, 19 Ala.App. 101, 95 So. We think, also, that this declaration evidenced some hostility to deceased which ......
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State v. Butler, A--72
...Sinnott, supra, 24 N.J. at page 413, 132 A.2d at page 300; State v. Donohue, 2 N.J. 381, 388, 67 A.2d 152 (1949); Dempsey v. State, 15 Ala.App. 199, 72 So. 773 (Ct.App.1916); State v. Peppie, 179 Or. 532, 173 P.2d 468 In the Sinnott case this court, through Justice Wachenfeld, had this to s......
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Whittle v. State
...quoted; the oral charge must be considered as a whole. McNeill v. State, 102 Ala. 121, 126, 15 So. 352, 48 Am.St.Rep. 17; Dempsey v. State, 15 Ala.App. 199, 72 So. 773. so considered, there was no reversible error. See Booker Whittle v. State, 89 So. 48. Appellant seeks to invoke the court ......
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