Englehardt v. State

• Decision Date: 15 January 1890
• Citation: 7 So. 154,88 Ala. 100
• Parties: ENGLEHARDT v. STATE.
• Court: Alabama Supreme Court

7 So. 154

88 Ala. 100

ENGLEHARDT v. STATE.

Supreme Court of Alabama

January 15, 1890

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

The defendant in this case, John Englehardt, was indicted for an assault on W. F. Vandiver with the intent to murder him, was convicted of an assault and battery, and fined $300. The assault was committed about dark on the evening of September 11, 1888, on the sidewalk in front of the defendant's store, in the city of Montgomery, where Vandiver was standing with one J. Faunce. Vandiver testified that the defendant passed him a few moments before the assault, and came back and said to him, "You have not treated me right;" that he attempted to pass into his store, but was intercepted by the defendant, who "jumped back and drew his pistol;" that after deliberation, "thinking that there was no fight in him," witness commenced advancing on him, having in his hand an open pen-knife, with which he had been cleaning his finger nails; that the defendant fired at him, pointing his pistol towards him, but witness clinched him, and got control of the pistol; that the pistol was again discharged during the struggle between them, but he succeeded in getting the defendant down, and held him down, with the aid of Faunce. Faunce testified, on the part of the prosecution, that the defendant, when he approached Vandiver had a small cane in his hand, which he raised when in striking distance, but Vandiver wrenched it from his hand that the defendant then drew his pistol, which was self-cocking, and Vandiver which was self-cocking, and Vandiver caught his right hand, and turned the pistol aside as it was discharged, the ball striking the ground; and that the weapon was again discharged during the struggle between them, or as the defendant was falling. The defendant testifying in his own behalf, stated that he had been drinking heavily all day; was so drunk that he did not know what he was doing, and had no recollection of the difficulty; and he introduced several witnesses, who testified to his intoxicated condition and misbehavior at different hours during the day,-that he was "crazy drunk," as they expressed it. The defendant was arrested by a policeman, and was fined $50 by the recorder for an assault and battery on Vandiver, and he pleaded this in bar of the prosecution; but the court sustained a demurrer to this plea. The court charged the jury that, "if they believe the evidence, the defendant was guilty of an assault, or an assault and battery." The defendant excepted to this charge, and requested the court to give the following charges in writing, and duly excepted to their refusal: (1) "If the jury believe from the evidence that the defendant was crazy drunk at the time of the difficulty with Vandiver, then they must acquit him of an assault with intent to murder." (2) "If the jury believe from the evidence that the defendant was drunk at the time of the difficulty with Vandiver, they may look to this as showing him to have been more easily excitable than a sober man would have been under like circumstances." (3) "The jury may use their own knowledge, as practical, sensible men, and their own experience of men and things, in considering whether Englehardt was drunk at the time of the difficulty with Vandiver; and if from such knowledge and experience, in connection with all the evidence in the case, they believe that he was too drunk to intend, willfully, deliberately, and premeditatedly, to maliciously kill said Vandiver, then it is their duty to acquit him."

A. A. Wiley, for appellant.

Tennent Lomax, for the State.

SOMERVILLE J.

The court, in our opinion, committed no error in charging the jury that, if they believed the evidence, the defendant was guilty of assault, or assault and battery. There was undoubtedly an attempt or offer, on the defendant's part, with force and violence, to do a corporal hurt to the prosecutor,-an attempt manifested both by aiming and firing a loaded pistol in the direction of his person, and by raising a stick, within striking distance, as if to strike him, which was prevented by his wrenching the stick from the defendant's hand. This was clearly an assault, constituting, as it did, one or more acts, either of which if consummated would have resulted in a battery. Chapman v. State, 78 Ala. 463.

2. The evidence, moreover, shows a battery, which is "the unlawful application of violence to the person of another." May, Crim. Law, § 55; Com. v. McKie, 61 Amer. Dec. 410. "A battery is not necessarily a forcible striking with the hand or stick, or the like, but includes every touching or laying hold (however trifling) of another's person, or his clothes, in an angry revengeful, rude, insolent, or hostile manner." 1 Amer. & Eng. Cyclop. Law, 783. There is no conflict in that part of the evidence showing the circumstances attending the difficulty. To prevent being shot by the pistol the prosecutor, Vandiver, seized the defendant's right hand, which contained the weapon, forcing its discharge in the air. ...