Horn v. State

Decision Date05 June 1893
Citation98 Ala. 23,13 So. 329
PartiesHORN v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Marengo county; James T. Jones, Judge.

Paul Horn was convicted of assaulting Isaac Rosenberg with intent to murder, and he appeals. Reversed.

The state introduced Mack Walker as a witness, whose testimony tended to show that he knew defendant, and saw him in Faunsdale, the place of the difficulty, on the day of the afternoon of the shooting, a short time prior to the difficulty; and, after stating that he had a conversation with the defendant on that afternoon, the state then asked him the following question: "What was that conversation?" The defendant objected to this question on the ground that it was illegal, irrelevant, and too broad and that a proper predicate had not been laid. The court overruled the objection, and the defendant excepted. The witness answered: "The defendant told me that this Jew had five dollars of his money; that he was going down there after it, and was going to have it, or give him a frailing." The defendant requested the court to give the following written charge to the jury: "If the jury believe from the evidence that Paul Horn went to the store of Isaac Rosenberg, and that Isaac Rosenberg assaulted him, and that several persons jumped on him, and were beating him, and he fired the shot at Issac Rosenberg, when Rosenberg was advancing on him, under the belief that it was necessary for his protection, then he is not guilty of an assault with intent to murder, although he might have struck Rosenberg and got in a fight with him." The defendant also requested the court to give to the jury the following charge "The testimony of a witness for the prosecution, who is shown to be unworthy of credit, is not sufficient to justify a conviction without corroborating evidence; and such corroborating evidence, to avoid anything, must be a fact tending to show the guilt of the defendant. Cohen v. State, 50 Ala. 108; Porter v. State, 55 Ala. 96."

C. K. Abrahams and Peter M. Horn, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

STONE C.J.

There was an application for a change of venue in this case, and a very strong showing was made in support of it. On the other hand, a full showing was made that before the trial came off better counsels prevailed, passions had cooled, and the sentiment of the public had settled down to the determination that the accused should have a fair and impartial trial upon the evidence as it should be developed. This counter showing was supported by many affidavits of persons residing in many different precincts of the county. We have no means of knowing the character and intelligence of the several affiants, and hence cannot speak of the same. The judge of the circuit court was on the same ground, and could inform himself in these respects. He had, therefore, much better opportunity for arriving at a conclusion on this application than we can have. He denied the motion, and we are not satisfied that he erred. This case, on this question, is not distinguishable in its legal bearings from that of Hawes v. State, 88 Ala. 37, 7 South. Rep. 302; and on the authority of that case we hold that appellant can take nothing on this alleged ground of error. Hussey v. State, 87 Ala. 121, 6 South. Rep. 420; Seams v. State, 84 Ala. 410, 4 South. Rep. 521.

The circuit court did not err in the employment of a sworn interpreter to interpret the testimony of the prosecuting witness. Some of the jurors were unable to understand his attempt to speak the English language, and it was the court's duty to have the testimony put in such shape as that it could be understood by the body whose duty it was to pronounce on the facts. Code 1886, § 2764; 1 Whart. Ev. §§ 174, 407.

There was certainly nothing in the objection to the question propounded to the witness Walker, or to the answer he gave to that question. Their purpose and tendency were to prove the accused contemplated violence on the person he is charged to have assaulted. This was material testimony to be considered by the jury in determining who brought on the difficulty, and also on the inquiry of formed design,-an essential element of the offense with which he was charged. Ross v. State, 62 Ala. 224; Fields v. State, 52 Ala. 348; Ex parte Nettles, 58 Ala. 268; Ex parte Warrick, 73 Ala. 57; Mitchell v. State, 60 Ala. 26; Cleveland v. State, 86 Ala. 1, 5 South. Rep. 426; De Arman v. State, 71 Ala. 351; Gibson v. State, 91 Ala. 64, 9 South. Rep. 171.

The indictment in this case, pursuing the form prescribed in our Code, (form 12,) charges "that Paul Horn unlawfully, and with malice aforethought, did assault Isaac Rosenberg, with intent to murder him." This indictment, while it specifically charges a felony, by operation of law charges every lesser offense included in the one charged. Hence it charges the defendant with assault and battery and with a simple assault, in neither of which is malice aforethought an essential ingredient. Jones v. State, (Ala.) 11 South. Rep. 399. Charges 8, 5, and 6, asked by defendant, claimed an acquittal of defendant if there was a failure of proof of malice aforethought. These charges were rightly refused for the reason stated above, if for no other.

Charge No. 1, asked by defendant, is too meager in its postulates. It pretermits all inquiry of defendant's conduct anterior to the time Rosenberg is supposed to have assaulted him, and fails to hypothesize that the supposed assault from Rosenberg menaced grievous bodily harm. If one by his conduct provokes an assault, or assault and battery, on his person, which is not likely to produce...

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35 cases
  • Elliott v. State, 1831
    • United States
    • United States State Supreme Court of Wyoming
    • March 20, 1931
    ...... with which he is charged, whether it be a felony, or a. misdemeanor. Code 1923, § 8697. That an assault with a. weapon is included in the charge of an assault with intent to. murder has been expressly decided in this State. Jones v. State, 79 Ala. 23; Horn v. State, 98 Ala. 23,. 13 So. 329; Curry v. State, 120 Ala. 366, 25 So. 237; Payne v. State, 148 Ala. 609, 42 So. 988;. Lovett v. State, 10 Ala.App. 72, 64 So. 643." See, also:. State v. Graham, 120 S.C. 216, 112 S.E. 923;. Reynolds v. State, 11 Tex. 120; Hussey v. State, 144 Miss. ......
  • Douglas v. State
    • United States
    • Alabama Court of Appeals
    • October 8, 1963
    ...as to the need to find from all the evidence that the accused intended to take the life of the victim of his assault. See Horn v. State, 98 Ala. 23, 13 So. 329, as to need for 'facts [to] raise the presumption of intent to murder.' Ray v. State, 147 Ala. 5, 41 So. 519, states that use of a ......
  • State v. Aguelera
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1930
    ...... judge. Sec. 2343, R. S. 1919; State v. McGinnis, 158. Mo. 105; State v. Cabodi, 18 N. M. 519; The King v. LeKun, 1 Kings Bench Division (England; 1916) 337; Rex v. Walker & Chinley, 15 B. C. 124; The King v. Joseph. Sylvester, 45 N. S. 550; Commonwealth v. Lenousky, 206 Pa. St. 277; Horn v. State, 98. Ala. 23; People v. Salas, 2 Cal.App. 537; State. v. Severson, 78 Iowa 653; State v. Gomez, 89. Vt. 490. A refusal to allow a competent interpreter to act is. reversible error where it deprives the party of a material. witness, there being no other interpreter obtainable. Chicago ......
  • State v. Reed
    • United States
    • United States State Supreme Court of Idaho
    • January 12, 1894
    ...v. State, 11 Neb. 1, 7 N.W. 444; Adams v. State, 28 Fla. 511, 10 So. 106; Hyde v. Harkness, 1 Idaho, 601, 602, 603, 604; Horn v. State, 98 Ala. 23, 13 So. 329, 330.) C. J. Morgan and Sullivan, JJ., concur. OPINION HUSTON, C. J. The defendant was indicted at the September term, 1892, of the ......
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