Holmes v. State

• Decision Date: 07 April 1903
• Citation: 136 Ala. 80,34 So. 180
• Parties: HOLMES v. STATE.
• Court: Alabama Supreme Court

34 So. 180

136 Ala. 80

HOLMES v. STATE.

Supreme Court of Alabama

April 7, 1903

Appeal from Circuit Court, Madison County; A. H. Alston, Judge.

Arthur Holmes was convicted of an assault with a pistol, and he appeals. Affirmed.

On the trial of the case the state introduced as a witness Annie Love, the person assaulted, and her testimony tended to show that the defendant intentionally and deliberately shot her with a pistol. The only other witness introduced by the state was the mother of Annie Love, who testified that she was not at the house when Annie Love was shot, having left the house that morning; that when she returned to her home she found Annie Love lying in bed, and suffering from a pistol shot wound. The defendant, as a witness in his own behalf testified that the shooting of Annie Love was accidental, and occurred while she and he were scuffling over a pistol which he had; that after she was shot he tried to lift her up, and stated that he would go for a doctor, and started off to the home of Mr. Latham to get him to go for a doctor. The defendant's counsel asked the witness the following question: "If he told Mr. Latham about the accident when he saw Mr. Latham?" The state objected to this question the court sustained the objection, and to this ruling the defendant duly excepted. Thereupon counsel for the defendant asked the defendant the following question: "How did you happen to have a pistol on that occasion, and what were you doing with it?" The state objected to this question, the court sustained the objection, and the defendant duly excepted. The defendant introduced as a witness Mr. S. A. Latham, who testified to the general good character of the defendant. During his examination the defendant asked him the following question: "Do you know anything about why Arthur Holmes had a pistol at the time of the shooting?" The state objected to this question, the court sustained the objection, and the defendant duly excepted. The court, at the request of the defendant, gave to the jury the following written charges: "(1) If there is a probability of defendant's innocence, you must acquit him. (2) I charge you to acquit unless the evidence excludes every reasonable supposition but that of defendant's guilt. (3) If there is a reasonable supposition of defendant's innocence, you must acquit him. (4) If any individual juror is not convinced of defendant's guilt beyond all reasonable doubt, and to a moral certainty, the jury cannot convict the defendant." The instruction of the court in connection with the giving of these charges requested by the defendant is copied in the opinion. The defendant also requested the court to give to the jury the following charges, and separately excepted to the court's refusal to give each of them as asked: "(5) If the jury have a reasonable supposition of defendant's innocence, arising out of any part of the evidence, they must acquit. (6) If there is a reasonable doubt of defendant's guilt, arising from any part of the evidence, they must acquit. (7) If any individual juror, after he has consulted with his fellow jurors, finds that he differs from his eleven fellow jurors, and entertains conscientious, fixed convictions, different from the other eleven jurors, then it would be the duty of such juror not to give up the unalterable convictions of his own mind. (8) If the jury believe the evidence in this case, their verdict must be, 'Not guilty.' (b) While the jury, in weighing the defendant's evidence, may consider the fact that he is the defendant, and interested in the result of the case, yet the jury, in considering the evidence of Annie Love, may also consider the fact that ...