McGee v. State

• Decision Date: 07 May 1912
• Citation: 58 So. 1008,4 Ala.App. 54
• Parties: MCGEE v. STATE.
• Court: Alabama Court of Appeals

58 So. 1008

4 Ala.App. 54

MCGEE v. STATE.

Court of Appeals of Alabama

May 7, 1912

Appeal from Circuit Court, Russell County; M. Sollie, Judge.

William McGee was convicted of crime, and he appeals. Reversed and remanded.

Glenn & De Graffenried, of Seale, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

The defendant was indicted for assaulting his wife with the intent to murder her.

1. So far as the evidence discloses, there were but three witnesses to the alleged offense, the defendant, the wife, and another woman, Emma Frierson. The state introduced the wife as a witness, and, against the objection of the defendant, she was permitted to testify as a witness against her said husband. It has always been the rule that, in criminal prosecutions against a husband, for acts of personal violence against the wife, the wife is a competent witness against him. The reason for this rule is stated by the text-book writers to be one of necessity, for otherwise the crime might go unpunished. 1 Hale, P. C. 301; 1 East, P. C c. 11, § 5, p. 445. The wife, in such a case, is not only a competent witness against her husband, but she can be compelled to testify, whether she desires to do so or not. The public has an interest in her testimony, for it is to the interest of the public that all crimes shall be punished. Johnson v. State, 94 Ala. 53, 10 So. 427. There was, in early times, some doubt expressed as to whether one spouse was competent, in such cases, to testify to facts which could be testified to by other witnesses; but there seems to be, now, no doubt of the competency of a spouse to testify, in such cases, to facts which could be or are in fact testified to by other witnesses. 3 Am. & Eng. Ency. Law (2d Ed.) 955; People v. Northrup, 50 Barb. (N. Y.) 147. There was nothing in the objection of the defendant to the action of the court in permitting the wife to testify as a witness in the case. She was competent, in this case, as a witness either for or against him. Clarke v. State, 117 Ala. 1, 23 So. 671, 67 Am. St. Rep. 157.

2. In Blackwell's Case, 9 Ala. 79, the Supreme Court, through Ormond, J., said, in defining an assault for which a criminal prosecution will lie: "An assault is defined by Blackstone to be an attempt or offer to beat another without beating him; and it seems entirely clear that, when there is no attempt to inflict personal violence on another, there can be no assault."

"An assault is an attempt or offer, with force and violence, to do a corporal hurt to another." Bacon's Abridgment Tit. Ass. & Bat., p. 371. "Every battery includes an assault." Bacon's Abridgment, supra.

"The least touching of another 'willfully' does not constitute a battery. The touching of another 'in anger' is a battery." Alston v. State, 109 Ala. 51, 20 So. 81.

"Any injury whatsoever being done to the person of a man in an angry or revengeful or rude or insolent manner, as by spitting in the face, or any way touching him in anger, or violently jostling him out of the way, is a battery in the eyes of the law." Bacon's Abridgment, supra; Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42.

"The intent to harm is the essence of an assault." 3 Cyc. 1067.

In other words, except in the instances to which we hereafter refer, in all criminal prosecutions for an assault or an assault and battery, the law looks to the intent with which the act was done. Where there existed, at the time of an alleged battery, no intent to do personal injury, then there was no crime unless the act was done under circumstances hereinafter referred to. Tarver v. State, 43 Ala. 354; Lane v. State, 85 Ala. 11, 4 So. 730; Wharton's Am. Crim. Law (4th and Rev. Ed.) § 1341.

In civil, as distinguished from criminal, actions, an intent to injure is not essential to the liability of the person committing the assault. Carlton v. Henry, 129 Ala. 479, 29 So. 924.

In fact, we think that, at times, courts have fallen into error in applying, or in attempting to apply, the rules applicable only to civil actions for assaults and batteries or trespass to the person to the facts in criminal prosecutions. In a criminal prosecution for an assault and battery, except as hereinafter shown, the intent to injure is one of the essential elements of the offense; in civil actions, the intent, while pertinent and relevant, is not essential. Carlton v. Henry, 129 Ala., 29 South., supra.

3. One of the exceptions to the above rule is that, in a criminal prosecution for an assault and battery or an assault, the fact that the defendant was voluntarily drunk at the time and was, on that account, incapable of forming or entertaining an intent to injure is no defense to such prosecution. The reason for this rule is so well established and so well known that we will not discuss it.

4. The other exception is that a defendant is held answerable to a criminal prosecution for an assault and battery in cases where he intentionally does an illegal act from which another suffers personal violence, or wantonly does an act which but for the wantonness would be a legal act under such conditions as will be dangerous to another and causing personal violence to another. For these reasons, there are many instances in which, in a criminal prosecution for an assault and battery, a conviction has been sustained in which the defendant did not entertain feelings of animosity against the party injured, but in which he intentionally did an illegal or mischievous act from which another suffered personal injury. For the same reasons, there are also many instances in which, in such criminal prosecutions, a conviction has been sustained because the defendant wantonly did an act not per se illegal, but which he knew or should have known was likely to injure another in his person, and by reason of which wanton act another was actually injured in his person. For the above reasons, convictions for assaults or an assault and battery are upheld in prosecutions for rape, robbery, and the like, as also in such instances as where a person in the lawful custody of an infant wantonly exposes such infant to the inclemency of the weather, whereby it suffers bodily injury or pain, or where a person wantonly throws a lighted fuse into a crowd, whereby some one is injured, or wantonly strikes a horse upon which another is riding, or wantonly intrudes upon the privacy of a female in her bedroom, or wantonly places poison in the food of another, thereby causing him physical hurt, or in some other wanton way physical suffering or injury, however slight, is caused to another. This far, as we understand the law, criminal prosecutions may go, but no further. There is not, so far as the writer of this opinion has been able to find, any case in which even an expression of our Supreme Court can be construed as in conflict with the above views, except the case of Medley v. State, 156 Ala. 78, 47 So. 218, in which the court says that the "defendant intentionally shot Lokey, or he intentionally discharged the rifle at a place where it was likely some person would be hit, or that he intentionally pointed the rifle at Lokey in violation of section 4342 of the Criminal Code, or that he was grossly...