Hall v. State

• Decision Date: 19 May 1914
• Docket Number: 608
• Citation: 11 Ala.App. 95,65 So. 427
• Parties: HALL v. STATE.
• Court: Alabama Court of Appeals

65 So. 427

11 Ala.App. 95

HALL v. STATE.

No. 608

Court of Appeals of Alabama

May 19, 1914

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

John Hall was convicted of an assault with intent to murder Fred Camack, and appeals. Affirmed.

The exceptions to evidence sufficiently appear from the opinion. The following charges were refused to defendant:

(1) If you believe from the evidence that defendant was free from fault in bringing on the difficulty, and retreated as far as was reasonably safe under the circumstances as shown by the evidence before the firing, you should acquit.

(2) If after you have considered the whole of the evidence in this case, or any part of such evidence, there is in your mind a reasonable doubt of the defendant's guilt, you should acquit.

(3) If defendant was free from fault in bringing on the difficulty, and believed at the time he shot Camack that he was in danger of an assault on life or limb being inflicted by Camack, you should acquit.

(4) If there is in the mind of any juror a reasonable supposition of defendant's innocence arising from the facts in evidence, then you should acquit.

(5) If any juror feels any uneasiness whatever as to the truth of the fact in saying guilty, and feels any desire for further evidence, he has a reasonable doubt under the law and must find for an acquittal.

(6) I charge you that the rock or brick offered in evidence in the case is a deadly weapon.

(7) If you believe from the evidence in this case that defendant did not provoke or bring on a difficulty, but addressed Camack in an orderly and peaceful manner, and that Camack addressed defendant in an angry and insulting manner and used such weapons or violence as to indicate to a reasonable man that he was in danger of life or limb, the law gives the defendant the right to protect himself, and you should acquit.

(8) While the burden is on defendant to prove his plea of self-defense to the reasonable satisfaction of the jury, yet if the jury had a reasonable doubt of defendant's guilt growing out of the testimony, or any part of it, you must acquit.

(9) If you believe from all the evidence in this case that Fred Camack provoked the difficulty, and also assaulted defendant with a rock or other weapon, defendant had a right to use such force as was necessary to defend himself against such assault, even to the taking of the life of Camack if necessary to protect himself from great bodily harm or injury.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

WALKER P.J.

Over objections of the defendant the state was permitted to introduce evidence as to bystanders saying: "Don't shoot him any more!" "Don't do that!" etc.--while the defendant had his pistol aimed at his adversary after the latter had already been shot and was lying on the ground. These exclamations may be regarded as part of an occurrence which still was in progress when they were made. They were so intimately connected with the defendant's conduct as to characterize and explain it, to shed light on the purpose which he manifested by aiming his pistol again at his adversary, and to show how he was influenced to refrain from further shooting. They were part of the res gestae, and evidence of them was properly admitted. Wesley v. State, 52 Ala. 182; Dismukes v. State, 83 Ala. 287, 3 So. 671; Kirk v. State, 65 So. 195; Underhill on Criminal Evidence, § 101.

On the inquiry as to whether the assault was made with intent to murder, the gravity of the wounds inflicted was a proper matter for consideration; and in this connection it was permissible to prove their serious nature and the consequences of them to the assaulted party, and to show how long he was in a hospital and the extent of his disability in consequence of his injuries. Wright v. State, 148 Ala. 596, 42 So. 745.

The court was not in error in admitting testimony to the effect that a short while before the difficulty occurred the defendant appeared to be drinking. If it was a fact that when the incident occurred one of the parties to it was under the excitement of strong drink, this fact was one proper to be considered by the jury in weighing the conflicting evidence as to how the difficulty started and what was done by the participants in the course of it. It is not to be doubted that evidence tending to prove that on an occasion in question one was intemperate or insulting in his expressions and hasty or violent in his conduct is strengthened by evidence tending to prove that at that time his ability to act soberly and with discretion was impaired by intoxication. The fact was a relevant one, in that it added to the probability of the defendant's...