Ellis v. State
| Decision Date | 06 February 1895 |
| Citation | 105 Ala. 72,17 So. 119 |
| Parties | ELLIS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from criminal court, Jefferson county; S.E. Greene, Judge.
Lovett H. Ellis was convicted of assault with intent to murder, and appeals. Affirmed.
The evidence for the state tended to show that the assault upon Kingsmore by the defendant was unprovoked, and that the defendant shot him two or three times. The evidence for the defendant tended to show that at the time of the shooting Kingsmore was advancing upon him with a knife, and that he the defendant, shot him in self-defense. The defendant duly excepted to the court's refusal to give the following written charge, which was requested by him: "The defendant would be authorized to use a pistol on Kingsmore if Kingsmore was advancing on the defendant with a knife, and the defendant was in imminent danger of losing his life, or of great bodily harm."
Wm. C Fitts, Atty. Gen., for the State.
The defendant was convicted of a felonious assault, and sentenced to the penitentiary. The state having proven that the defendant fired three separate shots at the party assaulted, the defendant moved the court to require the state to elect for which of the shots it would prosecute. The evidence tended to show that the three shots followed each other in instantaneous succession. The facts did not present a case for an election. As was said in the case of Busby v. State, 77 Ala. 66, the last "might justly be regarded as but a continuation of the assault, and done under the impulse of the same design," and in execution of the same intent. With equal propriety the state could be required to elect in case of an ordinary assault and battery, when there was evidence that more blows than one was given, for which of the blows the state intended to prosecute.
The defendant was asked by the prosecution, on cross-examination "Why did you have a pistol?" and against his objection the witness was required to answer the question. There are some decisions which hold "that an uncommunicated motive or intent with which a party did an act, or refrained from an act, is not matter as to which he can testify." Dean v. State (Ala.) 17 So. 28; Ball v. Farley, 81 Ala. 288, 1 So. 253; Whizenant v. State, 71 Ala. 383. When, however, an objection is made, upon definite and specified grounds, none of which are well taken, the court is not bound to cast about for other grounds of objection. If those assigned do not sustain the motion, it is not reversible error to overrule the motion. Steiner v. Tranum, 98 Ala. 319, 13 So 365; McDaniel v. State, 97 Ala. 14, 12 So. 241. The defendant was upon trial for an assault with intent to murder. To convict, the state was required to show the specific intent to...
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