McDade v. State

• Decision Date: 26 May 1892
• Parties: MCDADE v. STATE.
• Court: Alabama Supreme Court

11 So. 375

95 Ala. 28

MCDADE v. STATE.

Supreme Court of Alabama

May 26, 1892

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Coon McDade was convicted of firing a pistol on a public road, and appeals. Reversed.

The indictment was as follows: "The grand jury of said county charge that before the finding of this indictment Coon McDade unlawfully discharged a certain firearm, to wit, a pistol, along or across a certain public road known as the 'Mount Meigs Road,' against the peace," etc. Upon the trial of the cause, as is stated in the bill of exceptions, the state introduced testimony tending to prove that defendant did shoot along or across a public road in Montgomery county, Ala., and within 12 months before the finding of the indictment, as charged in said indictment, to wit, did shoot along or across the "Mount Meigs Road," at a place or point about two miles from the city of Montgomery, and did also shoot along or across what was designated by the witness as "a turnout road," which was traveled and used by the public in order to avoid a sand bed, which at times was formed upon said Mount Meigs road, at a place or point about six miles from the city of Montgomery, and which at such times was a temporary obstruction or impediment to travel on said public road; that by reason of said sand bed, said "turnout road" was traveled a distance of about one half mile parallel with, and from twenty to forty yards distant from, the said Mount Meigs road. The defendant introduced testimony tending to prove that he did not shoot along or across the Mount Meigs road at any point or place whatever; but that, while traveling along said "turnout road," which left the Mount Meigs road about six miles from Montgomery, and when at a distance from said Mount Meigs road about forty yards, he did shoot off his pistol one time in an opposite direction from said public road. It was further shown that the said "turnout road" was a road used temporarily by the public in order to avoid a sand bed, which proved an inconvenience on the Mount Meigs road at times. It was proved that, while the "turnout road" was used by the public as a convenient road for traveling, it was on land owned by one Taylor, and that soon after the alleged shooting it was inclosed by the owner of it, and had not been used since for the purpose of traveling. This being in substance all the evidence, the court, in its general charge, among other things charged the jury as follows: "That if they were satisfied from the evidence beyond a reasonable doubt that the defendant shot a pistol along or across a turnout road in said county and state, within 12 months before the finding of this indictment, as described in the evidence, then the defendant would be guilty." The court further charged the jury in its general charge that "to make a short turnout, necessitated by obstructions, a public road, the shooting along or across which would make the defendant guilty as charged in the indictment, such turnout need not be established by the board of revenue of the county, or by any other act or use, except that the public generally used and traveled such turnout." The defendant duly excepted to the giving of these portions of the general charge, and also separately excepted to the refusal of the court to give each of the following written charges requested by him: (1) "That the jury must be...