Jackson v. State

• Decision Date: 12 January 1892
• Parties: JACKSON v. STATE.
• Court: Alabama Supreme Court

10 So. 509

94 Ala. 85

JACKSON v. STATE.

Supreme Court of Alabama

January 12, 1892

Appeal from circuit court, Conecuh county; JOHN P. HUBBARD, Judge.

Charlie Jackson was indicted and tried for an assault with intent to murder one Alexander Thomas, was convicted of an assault and battery, and appeals. Affirmed.

The testimony introduced for the state tended to show that at a meeting of a "benevolent association," of which both the defendant and said Thomas were members, and of which one Jim Dunklin was secretary, the defendant and Alexander Thomas got into a dispute, which resulted in the defendant's cutting said Thomas several times. The state proved, against the objection and exception of the defendant the circumstances of a difficulty between the defendant and Jim Dunklin which arose from the said Dunklin pulling the defendant off of the said Thomas. After the state had introduced all of this evidence, the court excluded all of said testimony as to the difficulty between defendant and Dunklin; but, upon defendant's insisting upon its going into evidence, "inasmuch as it had been adduced," the court allowed this testimony to remain in evidence. The testimony for the defendant was in conflict with that introduced by the state as to the circumstances of the rencounter between the defendant and said Thomas, the evidence for the defendant tending to show that he struck in self-defense. The defense proved, by certain witnesses, his general good character in the neighborhood in which he lived. The court, in connection with its general charge, charged the jury, among other things, as follows: (1) "When you come to look at the evidence in the case that he (defendant) is a man of good character, you cannot look at this to strengthen his testimony when he testifies, as a witness, for himself." (2) "The law says the assault must be with intent to take life with malice, to authorize conviction with intent to murder." (3) "If the jury should not find the defendant not guilty on the evidence, then, if they found that defendant was first assaulted by Alex. Thomas with a stick, then there arose for their consideration two propositions: First, whether defendant assaulted Thomas in heat of blood, which would reduce the offense to assault and battery; and, second, whether the defendant assaulted Thomas with intent to take his life, with malice, and, if with malice, this would constitute assault with intent to murder." The defendant separately excepted to the giving of each of these portions of the general charge, and also excepted to the court's refusal to give the following written charges requested by him: (1) "The court charges the jury that the burden of proving the alleged intent is on the state, and if you are satisfied by the evidence that, at the time the defendant and Alex. Thomas were separated, [defendant] had one of his hands on the throat, and in the other hand he had an open knife, and had Alex. down under him, and did not cut him, but desisted from cutting of his own free will, a presumption arises that he did not have the intent to murder." (2) "The court charges the jury that the state is bound to prove that the defendant had the specific intent to murder Alex. Thomas as charged in the indictment; and if the state has failed to prove to your satisfaction, beyond all reasonable doubt, that he had the intent to murder Alex. Thomas, you should find him not guilty of the intent to murder." (3) "The court charges the jury that, if the evidence leaves your minds in such a state or condition that you are unable to say whether or not the specific intent to murder existed beyond all reasonable doubt, you should find him not guilty of the higher grade of offense charged in the indictment, although you might find him guilty of the offense of assault and battery." (4) "The court charges the jury that defendant is charged with an assault with intent to murder Alex. Thomas with malice aforethought, and I charge you that the defendant must have formed, in his mind, the specific intent with malice aforethought, to take human life, or he is not guilty of this charge, and the evidence must show you that defendant formed this specific intent, beyond all reasonable doubt, or you should acquit him of this." (5) "The court charges the jury that if the proof shows you that defendant struck the blow under the honest belief that his life was in danger, or that he was in fear of having great bodily harm inflicted upon him by Alex. Thomas, that then you cannot convict defendant of an assault with intent to murder."

Stallworth & Burnett, for appellant.

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

STONE C.J.

As we understand the facts, when it was made known to the trial court that A. G. Smith, one of the persons from whom a jury was to be selected, had been convicted of a felony in this state, and had not been pardoned, the court declined to exclude him as a juror, unless he was challenged for that cause. The defendant thereupon challenged him for cause, and the court held the challenge well taken. So the juror Smith neither sat upon the jury, nor was his exclusion charged to the defendant as one of his peremptory challenges. It was impossible for this ruling to have done the defendant any injury, and the circuit court in thus ruling committed no error.

It is certainly much the safer and better practice to exclude illegal testimony when first objected to. This, because of the difficulty of...