Fuller v. State

• Decision Date: 03 February 1898
• Citation: 117 Ala. 200,23 So. 73
• Parties: FULLER v. STATE.
• Court: Alabama Supreme Court

23 So. 73

117 Ala. 200

FULLER v. STATE.

Supreme Court of Alabama

February 3, 1898

Appeal from criminal court, Pike county; E. B. Wilkerson, Judge.

John Fuller was convicted of assault and battery, and he appeals.Affirmed.

The prosecution in this case was commenced by the following affidavit made before a notary public and ex officio justice of the peace: "Personally appeared before me B. W Starke, N. P. and Ex. Off Justice of the Peace in and for said county, T. H. W. Whetstone, who being duly sworn says on oath that he has probable cause for believing and does believe that within twelve months before making this affidavit in said county, John Fuller assaulted Ella Williams with a weapon.Affiant further charges that within twelve months before making this affidavit, John Fuller attempted to commit an assault and battery on the person of Ella Williams against the peace and dignity of the state of Alabama."The defendant demurred to this complaint upon the ground that it fails to aver that the offense alleged in the counts therein was committed in Pike county.On the trial of the case, as is shown by the bill of exceptions, the state introduced as a witness one Ella Williams, who testified that one morning, before day, the defendant came to her house, and tried to get in, and, upon being refused admittance, he attempted to force an entrance, and made threats against her if she did not allow him to come in; that there were two other persons with the defendant, and that upon her continued refusal they went off, and in a few minutes returned, and shot into her house with a shotgun, making two holes in the door, and shot into her house several times with a pistol.There was other evidence tending to show that the defendant was guilty as charged.The defendant, as a witness in his own behalf, testified that on the night Ella Williams' house was shot into he was in the city of Troy until 12 o'clock, and then left and went home.Upon the introduction of all the evidence, the court, at the request of the defendant, gave to the jury the following charge "Before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion and, unless the jury are so convinced by the evidence of defendant's guilt that the jury would each venture to act upon that decision in...