Jones v. State, 4 Div. 497.
| Decision Date | 28 November 1939 |
| Docket Number | 4 Div. 497. |
| Citation | 193 So. 179,29 Ala.App. 126 |
| Parties | JONES v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Dec. 19, 1939.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
J Shelby Jones was convicted of assault, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Jones v. State (4 Div 125) 193 So. 182.
John Casey Walters, of Troy, for appellant.
Thos S. Lawson, Atty. Gen., and Noble J. Russell, Asst. Atty. Gen., for the State.
The indictment charged appellant, defendant below, with the offense of assault to murder; i.e., he unlawfully and with malice aforethought, did assault Eugene Mullis, with the intent to murder him.
The trial in the lower court resulted in the conviction of defendant of an assault, and the jury assessed a fine of $75. Failing to presently pay the fine and cost, or to confess judgment therefor, the court, as the law requires, sentenced the defendant to 30 days' hard labor for the county to pay the fine; and, to 68 days' hard labor to pay the costs, and an additional period of six months by the court. Judgment of conviction was duly pronounced and entered, from which this appeal was taken.
The evidence disclosed without dispute, that Mullis, the alleged injured party, was grievously injured as a result of an attack upon him by defendant. Also, that the cause of the attack, was a sordid affair, and the testimony in relation thereto is too offensive to recite, detail or quote in this opinion. Said evidence was in sharp and irreconcilable conflict, therefore presenting questions for the determination of the jury. The court properly held refused charge No. 1 inapt. There is no phase of this case which would justify the court in directing in favor of the defendant.
Refused charge No. 3 was abstract as to the second clause thereof, as nothing appeared in any of the evidence to show or indicate that counsel had indulged or made any assertions or statements in argument or otherwise pending this trial not within legitimate and authorized argument, or in any other manner. There appears nowhere in this case that the defendant interposed objection, or reserved any exception, as to "assertions and statement of counsel." The first clause of said refused charge No. 3. towit: "I charge you, you must decide this case from the evidence," was fairly and substantially covered by the oral charge of the court. This charge was properly refused.
On cross-examination of Mullis, the alleged injured party, defendant's counsel propounded the following question: " Upon objection being interposed to this question by the State, defendant's counsel made known to the court that the question was asked for the purpose and upon the following grounds: (1) "It was impeachment of the witness, Mullis." (2) "It showed contradictory statement by witness, Mullis." (3) "It tended to show defendant was not guilty of assault with intent to murder." The court properly sustained the State's objection to said question. In the first place the question was vague and uncertain, and as propounded may have related to matters wholly foreign to any issue involved in this case. Moreover, we are unable to conceive how a responsive answer to said question could have the tendency or effect sought by defendant as indicated by the purpose of the question made known to the court, and quoted above. The question did not call for a reply that would in any manner result in the impeachment of the witness. No responsive answer to the question could have tended to contradict any statement the witness had made on his direct examination, and, lastly, nothing that could have been said in reply to the question could tend to show that the defendant was not guilty of the charge or accusation upon which he was being tried.
If the defendant, by said question, was undertaking to show bias or ill will on the part of the witness, the question as to state of feelings toward defendant should have been...
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...Courts, rule 33, Code 1940, Tit. 7 Appendix; Levison v. State, 54 Ala. 520; Watkins v. State, 219 Ala. 254, 122 So. 610; Jones v. State, 29 Ala.App. 126, 193 So. 179; Millhouse v. State, 235 Ala. 85, 177 So. 556; Hayes v. State, 33 Ala.App. 364, 33 So.2d 744. For many other authorities on t......
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