McCormack v. State

• Decision Date: 01 May 1894
• Citation: 15 So. 438,102 Ala. 156
• Parties: MCCORMACK v. STATE.
• Court: Alabama Supreme Court

15 So. 438

102 Ala. 156

MCCORMACK v. STATE.

Supreme Court of Alabama

May 1, 1894

Appeal from circuit court, Limestone county; H. C. Speake, Judge.

George McCormack was indicted for assault with intent to murder, and was convicted of an assault with a knife, and appeals. Reversed.

The evidence for the state, as is shown by the bill of exceptions, tended to show that the defendant, a boy between 12 and 13 years of age, was going to school to the prosecutor, H. F. Moore; that upon being reprimanded for misbehavior in the schoolroom by his teacher, he refused to obey, whereupon H. F. Moore, the teacher, slapped him; that the defendant struck at the said Moore with his knife, which was open in his hand and cut him; that thereupon the said Moore and the defendant had a scuffle; that said Moore got the boy down on the floor, but did not hit him with his fist or bump his head on the floor; that the defendant had previously said to one or two others that he would cut the said Moore, if he whipped him; and that on one occasion he tried to provoke the said Moore to strike him. The evidence for the state further tended to show that "the defendant was a bright boy for his age, and of more than ordinary intelligence." The evidence for the defendant tended to show that at the time of the alleged difficulty he was a little over 12 years of age, and was very small for his age weighing only 50 or 60 pounds; that he had always borne a good character, and that he was not above the average or normal mental capacity of boys of his age; that "what he said about cutting the prosecutor was in answer to officious parties, who told him he ought to be whipped by the prosecutor, was the idle, meaningless gabble of a small boy and was of no significance;" that on the occasion of the alleged offense the defendant had not misbehaved, but was beating time to music, and disturbing nobody; that the prosecutor, without previous intimation, struck him on the head with his fist, and on being told by the defendant not to do that again, because he had a headache, he knocked the defendant backwards from the bench, and fell on him on the floor, where a scuffle ensued, the prosecutor bumping the defendant's head against the floor, and that in the scuffle the prosecutor was cut; that while on the floor the defendant was asked, Did he intend to cut the prosecutor, to which question the defendant replied that he did not. The bill of exceptions recites: "As evidence of the malice of the prosecutor towards the defendant, the defendant proposed to show that, the next morning after the difficulty one Randall Mitchell, a kinsman of the prosecutor, with whom he lived, went five (5) miles after a justice of the peace, to come to see the prosecutor about getting out a warrant for the defendant; that the justice came, talked with the prosecutor, and declined to issue the warrant. And witness Mitchell further testified that prosecutor knew nothing about his going to the justice, and did not ask him to go. On motion of the state, this evidence was excluded by the court, to which ruling of the court the defendant then duly excepted." As further evidence of the prosecutor's malice towards the defendant, the defendant proposed to show that one Randall Mitchell, a kinsman of the prosecutor, with whom he lived, a few days after the justice thus visited the prosecutor, went (10) ten miles, to Athens, to get the county judge to issue a warrant for the defendant. Witness further stated that prosecutor knew nothing about his coming to see Judge Horton, nor did he come at the instance of prosecutor. The court, in its general charge to the jury, among other things, instructed them as follows: "That, in order to determine whether the defendant was guilty of assault with intent to murder, you will look to see whether, if death had ensued, it would have been murder in the first or second degree." To the giving of this portion of the general charge the defendant duly excepted, and also separately excepted to the court's refusal to give each of the following charges requested by him: (1) "If you believe from the evidence that the defendant is under fourteen (14) years of age, and has only average or ordinary mental capacity, then you must find the defendant not guilty of assault with intent to murder." (2) "In considering the mental capacity of the defendant, if you find he threatened the prosecutor, you will look at his age, intelligence, and opportunities, and, if you conclude he had only average or ordinary mental capacity of one of his age, you will acquit him." (3) "The question here is not whether this alleged offense would have been murder if death had ensued. All the argument of the state's attorney on the question was unfounded."

R. A. McClellan, for appellant.

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

BRICKELL C.J.

1. The general rule as to the relevancy of evidence is that circumstances and facts which do not directly tend to the proof of disproof of the matter in issue are not admissible. If facts or circumstances which are incapable of affording any reasonable presumption in regard to the material inquiry involved in the issue were admitted, trials would be protracted indefinitely; and, that which is of more importance, the attention of the triors of the facts would be diverted from the real issues, and the verdicts rendered could as well be imputed to the evidence which did not relate, as to that which did relate, to these issues. State v. Wisdom, 8 Port. (Ala.) 511; Governor v Campbell, 17 Ala. 566. It is apparent the evidence proposed to be introduced had no relation to the assault with which the...