Elmore v. State

• Decision Date: 28 May 1896
• Parties: ELMORE v. STATE.
• Court: Alabama Supreme Court

20 So. 323

110 Ala. 63

ELMORE v. STATE.

Supreme Court of Alabama

May 28, 1896

Appeal from city court of Montgomery; W. S. Thorington, Judge.

The appellant, Lem Elmore, was indicted, tried, and convicted under an indictment charging him with assault with intent to murder one Robert Comer, and sentenced to the penitentiary for two years. On the trial of the cause, as is shown bye the bill of exceptions, the state introduced as a witness, Robert Comer, the person upon whom the assault was alleged to have been committed, who testified that on the day the difficulty occurred, he, with Ike Thornton, one Charley Bell and other persons were in a store owned by one Walker; that Ike Thornton and Charley Bell got into a fuss and Ike Thornton drew his knife and cut Bell; that Bell walked out of the store upon the sidewalk, and Lem Elmore, the defendant, came up and asked Bell about the cutting, and Bell told him who did it and the circumstances. The defendant's counsel then objected to this evidence, and moved to exclude it from the jury, on the ground that it was evidence of a difficulty between Ike Thornton and Charley Bell; that the defendant and Robert Comer had no connection with the difficulty, and the testimony was illegal and irrelevant. The court overruled the motion to exclude the evidence, and to this ruling the defendant duly excepted. This witness further testified that Comer took out his handkerchief and tied up Charley Bell's wound, and that then Bell came back into the store and sat down near the witness and Ike Thornton; that in a few moments Ike Thornton began to apologize to Bell. The defendant again moved the court to exclude this testimony as to the difficulty between Ike Thornton and Charley Bell, upon the grounds as stated above, and duly excepted to the court's overruling his motion. Thereupon the witness further testified that while Ike Thornton was apologizing to Bell, the defendant Lem Elmore came into the store with a brick in each hand, said to Bell, using an oath, "Go on and do as I told you"; that thereupon Bell walked behind the counter in the store, took a pistol out of the drawer and shot Ike Thornton, and that upon the defendant telling him to shoot Comer, he then shot Comer. Other witnesses for the state testified to substantially the same facts, except they testified that defendant came to a window of the store and told Bell to do the shooting. The testimony for the defendant tended to show that he did not go into the store at the time of either of the difficulties, and did not tell Bell to shoot either Comer or Ike Thornton. The defendant also introduced evidence as to his good character. Upon the introduction of all the evidence, the court, at the request of the solicitor gave to the jury the following written charges: (1) "When, by pre-arrangement or on the spur of the moment two or more persons enter upon a common enterprise or adventure, which contemplates the commission of a criminal offense, and their purpose is carried out, each is equally guilty of the offense committed, though he may have done no overt act in its commission, and this pre-arrangement may be established by circumstantial evidence." (2) "It is not necessary that...