Hawkins v. State, 5 Div. 92.

• Decision Date: 27 February 1940
• Docket Number: 5 Div. 92.
• Citation: 195 So. 762,29 Ala.App. 221
• Court: Alabama Court of Appeals
• Parties: HAWKINS v. STATE.

195 So. 762

29 Ala.App. 221

HAWKINS v. STATE.

5 Div. 92.

Court of Appeals of Alabama

February 27, 1940

Rehearing Denied March 12, 1940.

Appeal from Circuit Court, Tallapoosa County; Albert Hooton, Judge.

Ben Hawkins was convicted of assault with intent to murder, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Hawkins v. State, 5 Div. 319, 195 So. 765.

Jacob A. Walker, of Opelika, and Wilbanks &amp Wilbanks and Robt. S. Milner, all of Dadeville, for appellant.

Thos. S. Lawson, Atty. Gen., and Jas. F Matthews, Asst. Atty. Gen., for the State.

SIMPSON Judge.

The defendant was convicted under an indictment charging an assault with intent to murder upon one Welch. The defendant and his brother, with whom he was jointly indicted, operated a dance hall and lunch stand where the altercation occurred. The judgment entry discloses that the defendant demanded a separate trial, that a severance was granted by the court duly entered of record, and trial of defendant alone proceeded.

The evidence of the State, and the witnesses were several, was to the effect that, without provocation, the defendant assaulted Welch with a stick, striking him about the face and head several times, knocking him to the floor, as a result of which he suffered concussion, a fractured skull, and remained unconscious for about two weeks. From the evidence of the State's witnesses it was made to appear that the assault was thoroughly unjustified, warranting the verdict of guilty returned by the jury. The evidence for the defendant, however, tended to show that the assaulted person had previously made threats against defendant and his brother and that Welch, himself, provoked the assault, the defendant striking him in self defense.

The defendant moved for a new trial, alleging several grounds among which were that the verdict of the jury was contrary to the evidence, alleged error of the court in overruling motion of defendant for a continuance, errors of the court in certain rulings on the evidence, alleged misconduct and prejudicial remarks of the solicitor, alleged fixed opinion of two jurors who were in the panel which tried the case, and alleged prejudicial error in that a State's witness acted as special bailiff in charge of the jury.

Before entering upon the trial the defendant moved for a continuance of the cause on account of the absence of certain of his witnesses. Although proof was made by the defendant of the absence of these witnesses, no legal showing was made to the court or submitted to the solicitor as to what the testimony of such witnesses would be if present, as a predicate for continuance of the cause. In the absence of such showing it cannot be affirmed, as a matter of law, that the court committed prejudicial error. D. S. Pate Lumber Co. v. Davis, 215 Ala. 547, 112 So. 124; Ragland v. State, 187 Ala. 5, 65 So. 776. The principle is well recognized that such motions are addressed to the sound discretion of the trial court. Knowles v. Blue, 209 Ala. 27, 95 So. 481. There were other eye witnesses for the defendant who testified at the trial. The indictment in the case was returned and filed in court March 10, 1939, and the trial commenced March 21st thereafter and it does not appear that the trial court committed any abuse of this discretion.

The defendant sought to elicit from certain witnesses that he and his co-defendant brother had asked a deputy sheriff for police protection for this place of business on the night of the assault, after having heard of certain threats Welch was said to have made. This character of evidence was plainly self serving and illegal. It is true, as ably argued by learned counsel for appellant, that defendant is entitled to introduce any competent, relevant evidence to show the absence of criminal intent. 5 Corpus Juris 786. Nevertheless, this rule cannot be extended so as to comprehend such hearsay evidence so palpably self serving. Bowling v. State, 18 Ala.App. 231, 90 So. 33.

In the course of his direct examination the defendant testified: "When he (Welch) saw me coming up from this end of the counter, he turned his face to me and grabbed a coca cola bottle off the box--".

The court, upon motion of the State, excluded the statement "When he saw" and the defendant reserved exception. Although the question, if any, which elicited this answer is not given, this statement of the witness is obviously an illegal conclusion and invasive of the province of the jury. Furthermore, a careful reading of the defendant's testimony will reveal that he was permitted to fully detail the entire transaction and had there been error in the exclusion of the statement it was harmless.

The particulars of a previous difficulty, occurring several days before the occasion of the assault, and the fact of the intoxication of the assaulted party at...