Miller v. State
| Decision Date | 09 February 1926 |
| Docket Number | 3 Div. 526 |
| Parties | MILLER v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
J.D Miller, Jr., was convicted of assault and battery, and he appeals. Affirmed.
C.H Roquemore and Brassell & Brassell, all of Montgomery, for appellant.
Harwell G. Davis, Atty. Gen. and Chas. H. Brown, Asst. Atty. Gen for the State.
The indictment in this case charged the appellant (defendant in the court below) with the offense of an assault with intent to murder, and under an indictment of this character a conviction may be had of a simple-assault, or an assault and battery. On the trial in the court below the accused was convicted of an assault and battery, and was duly sentenced to hard labor for the county. From the judgment of conviction, he appealed.
No brief has been filed for appellant, and we will discuss the exceptions reserved upon the trial in the order in which they appear in the record.
The first exception noted is to the ruling of the court upon the admission in evidence of the alleged confession of defendant; the grounds of objection being: "No sufficient predicate had been laid," etc. The ruling of the court in this connection was without error, for it would be difficult to conceive of a predicate that would better meet the required rule. It was full and complete as shown, and manifested, if true, that such statements or confession as may have been made by the accused were wholly voluntary and of his own accord. Nor was there error in the court's ruling upon the cross-examination of state witness Ralph King, where defendant's counsel asked the witness: "You all discovered that he (defendant) was not telling the truth about it." The court properly sustained the state's objection to this question, and the exception reserved to this ruling of the court was without error.
There were two theories or insistences in this case, that of the state and that of defendant, and the evidence was in sharp conflict as to the way and manner the difficulty occurred between this appellant and Powell, the police officer, who was the alleged injured party. Under the state's theory, it was permissible to allow in evidence the piece of automobile spring in connection with the evidence of state witness Tucker, who testified that he found the piece of spring at the alleged scene of the difficulty within a few minutes after Powell was struck. It was of the res gestae. It was also corroborative of the evidence given by Powell. Moreover, it related to the locus in quo and naturally had the tendency to enable the jury to arrive at a correct conclusion in determining which of the respective insistences was the true one.
The record shows that state witness Addison Moseley was a deputy sheriff in attendance upon court. Over the objection and exception of the defendant, he was permitted to give testimony in behalf of the state, although he did not go under the rule with the other witness, the rule as to all witnesses having been requested and allowed. It is not the custom or practice to put officers of court under the rule. To do so in...
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Elliott v. State, 1 Div. 141
...told the truth calls for a conclusion and is invasive of the jury's province. Wright v. State, 149 Ala. 28, 43 So. 575; Miller v. State, 21 Ala.App. 261, 107 So. 226; Haynes v. State, 40 Ala.App. 106, 109 So.2d 738. In the following cases the Supreme Court of South Carolina held that it is ......
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