Locklear v. State

• Decision Date: 15 June 1920
• Docket Number: 7 Div. 640 [*]
• Citation: 17 Ala.App. 597,87 So. 708
• Court: Alabama Court of Appeals
• Parties: LOCKLEAR v. STATE.

87 So. 708

17 Ala.App. 597

LOCKLEAR v. STATE.

7 Div. 640 ^[*]

Court of Appeals of Alabama

June 15, 1920

Rehearing Denied Nov. 9, 1920

Appeal from Circuit Court, Etowah County; W.J. Martin, Judge.

Fred Locklear was convicted of assault with intent to murder, and he appeals. Affirmed.

E.O McCord & Son, of Gadsden, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SAMFORD, J.

The witness Tom Sanson was permitted to testify that immediately after the defendant had cut witness and witness had gone out of the storehouse on to the sidewalk, defendant walked out of the storehouse, looked back, and said to the party who had gone there with him, "Come on," got into an automobile, and drove away. This was so closely connected with the assault as to be a part of the res gestae and, while slight, it tended to show the mental condition of the defendant at the time of the assault. The objection and motion were properly overruled.

The fact that defendant was driving an automobile when he came up and when he left was competent. It being contended by the defendant that he was too drunk to form the felonious intent all of his acts and his manner at and near the time of the alleged assault were relevant to go to the jury in determining this question; that the court permitted this before the defendant had offered such proof is not reversible error, as, if error, it was cured by the subsequent evidence offered by defendant.

The clothing worn by the party assaulted at the time of the assault was admissible to show the places where the stabs were made, the amount of blood, and any other fact connected with the difficulty that might be disclosed by an examination of them. That the undershirt had been cut off by the doctor who dressed the wounds would not render the undershirt inadmissible, unless such cutting had obliterated the cuts made by defendant's knife so as to prevent identification. Upon the testimony it was for the jury to say which cuts in the undershirt had been made by the doctor and which by the knife of defendant. The clothing of a party assaulted, worn at the time of the assault, is so closely connected with the corpus that they frequently furnish the best evidence as to the extent, location, and character of the wounds, and where those evidences have not been changed or obliterated, are always admissible. 4 Ency.Dig.Ala.Repts. p. 173, § 249.

Whether the cuts in the clothing corresponded with the person of the party assaulted was a question for the jury. If they did, it might tend to corroborate the state's theory, and, if not, it might tend to aid the defendant.

If there was any error in permitting the state to ask defendant's witness on cross-examination where defendant bought the whisky he was supposed to have drunk, it was without injury to defendant, as the witness answered that he did not know.

As we have said above, the acts and conduct of the defendant shortly before and shortly after the difficulty were admissible, as going to show his mental condition at the time of the difficulty, and, while the place where the defendant got his dinner may or may not have shed any light on that question, if it did, it was competent; if it did not, it was without possible injury. The fact that he dined with one of the jurors engaged in trying the case was of no consequence.

It was shown without conflict that after the assault, defendant fled and went to the state of Texas, and was brought back by the officers of the law, and afterwards escaped. In proving this flight, the state was authorized to prove any fact going to show that it was carried out with secrecy, as going to show a consciousness of guilt.

The defendant insists that the court committed reversible error in its oral charge to the jury, in that it used the following expressions:

"You may gather the man's intent from his conduct as shown by the testimony." "The intent must obtain--must of necessity be inferred from the character of the assault, the want or use of a deadly weapon, and the presence or absence of excuse or palliating facts or circumstances." "What do you say from the facts in this case as to the assault--this charge of assault with intent to murder? Was it unlawful? Without excuse, or justification, was it purposely made without mitigating or extenuating circumstances, if, so it was malicious."

These expressions were all well within the province of the...