Dobbins v. State

• Decision Date: 07 September 1916
• Docket Number: 4 Div. 444
• Citation: 72 So. 692,15 Ala.App. 166
• Parties: DOBBINS v. STATE.
• Court: Alabama Court of Appeals

72 So. 692

15 Ala.App. 166

DOBBINS v. STATE.

4 Div. 444

Court of Appeals of Alabama

September 7, 1916

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Luther Dobbins was convicted of assault with intent to murder, and he appeals. Affirmed.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty Gen., for the State.

EVANS J.

This appeal is prosecuted from a judgment of conviction for felonious assault; appellant having assaulted one Albert Metcalf with murderous intent.

Exceptions to the testimony of Alma Richards, a state witness, were obviously without merit. This witness had answered that he did not know and could not tell whether Metcalf was trying to draw a gun. This being the case, the witness should not have been allowed to state to the jury what his "judgment" on the subject was. True, a witness may testify to his impressions derived from collective facts, but in so doing he is still deposing to facts as contradistinguished from mere opinions, and this is but a shorthand rendering of the surrounding circumstances or the giving of a composite fact. See Reeves v State, 96 Ala. 33, 11 So. 296; Perry v. State, 87 Ala. 30, 6 So. 425; S. & N.A.R.R. Co. v McLendon, 63 Ala. 266. But where the witness testified that he was unable to say what one of the participants in the difficulty was trying to do at a particular time or in a particular matter, the statement of the judgment of witness as to such circumstance would be entirely speculative and invasive of the province of the jury. The court was not in error in its ruling, as counsel insists.

Defendant cannot prove that his antagonist was a dangerous or turbulent man by specific acts of his antagonist; consequently the court properly sustained the state's objection to the question propounded to witness H.I. Goff as to whether Metcalf had not previously had a difficulty with one Albrisson at Hartford. Montgomery's Case, 2 Ala.App. 33, 56 So. 92;

Franklin's Case, 29 Ala. 14.

Exceptions were reserved to the refusal of the court in disallowing questions propounded to witnesses Ike Chancey and Dr. Fleming as to whether Metcalf had been drinking prior to the difficulty. The fact, if it be a fact, that the antagonist of accused had been drinking the day before the difficulty would not be relevant, unless the object was to show the condition of the mind of the antagonist of accused at the time of the difficulty, and then only when the evidence tended to prove self-defense; and, unless so limited, the evidence was inadmissible. The evidence rejected in the instant case, however, showed the drinking to have been too remote to affect the state of said antagonist's mental condition at the time in question. Harrell's Case, 166 Ala. 14, 52 So. 345; Gregory's Case, 140 Ala. 16, 27, 37 So. 259; Dunn's Case, 143 Ala. 67, 73, 39 So. 147; Askew's Case, 94 Ala. 4, 10 So. 657, 33 Am.St.Rep. 83.

We do not see the relevancy or materiality of the question excluded in the...