Letcher v. State

• Decision Date: 18 January 1906
• Citation: 145 Ala. 669,39 So. 922
• Parties: LETCHER v. STATE.
• Court: Alabama Supreme Court

39 So. 922

145 Ala. 669

LETCHER v. STATE.

Supreme Court of Alabama

January 18, 1906

Appeal from Circuit Court, Macon County; S. L. Brewer, Judge.

"Not officially reported."

Metcalf Letcher was convicted of assault with intent to murder, and appeals. Reversed.

J. T Letcher, H. P. Merritt, Thomas L. Bulger, and J. M. Chilton for appellant.

Massey Wilson, Atty. Gen., for the State.

DOWDELL J.

The defendant was tried on an indictment charging him with murder in the first degree, and was convicted of an assault with intent to murder. That the greater offense of murder may embrace the lesser offense of an assault with intent to murder we think there can be no doubt. Such a doctrine is asserted in the cases of Daughdrill v. State, 113 Ala. 7, 21 So. 378, and Thomas v. State, 125 Ala 45, 27 So. 920, and we are unwilling now to depart from the ruling in those cases. But, while such is the law, under an indictment charging murder a defendant cannot be tried and convicted for an assault with the intent to murder, where such assault is an act separate and disconnected from the act charged in the indictment; or, in other words, in order to have a conviction for an assault with the intent to murder under an indictment for murder, the assault must be connected with and forming a part of the act charged in the indictment.

There was evidence on the part of the state going to show that the deceased came to his death by a gunshot wound in the head the same being made by a ball from a 38-caliber pistol. The evidence of the state also tended to show that this mortal wound was inflicted on the deceased about 6 o'clock in the morning. The evidence of the state also showed that there were other gunshot wounds found in the body of the deceased, made with BB shot, discharged from a shotgun, none of which, however, were shown to be of a fatal nature. It was shown by the evidence that the latter wounds with the BB shot were made by the defendant with a shotgun, some five or six hours prior to the pistol wound which caused the death of the deceased, and at a different place. There was also evidence tending to show that several days prior to the time above stated the defendant assaulted the deceased with a gun. There was no pretense of any connection between the two assaults and the killing with the pistol, such as would constitute one transaction; but, on the contrary, the transactions were separate and distinct. ...