Mooneyham v. State

• Decision Date: 20 February 1951
• Docket Number: 8 Div. 887
• Citation: 35 Ala.App. 576,50 So.2d 792
• Parties: MOONEYHAM v. STATE.
• Court: Alabama Court of Appeals

Page 792

50 So.2d 792

35 Ala.App. 576

MOONEYHAM v. STATE.

8 Div. 887.

Court of Appeals of Alabama.

Feb. 20, 1951.

Ralph H. Ford, of Huntsville, for appellant.

Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

'9. The Court charges the jury that if they are not satisfied beyond all reasonable doubt, to a moral certainty and to the exclusion of every other reasonable hypothesis but that of the guilt of the defendant, they should find him not guilty; and it is not necessary, to raise a reasonable doubt, that the jury should find from all the evidence a probability of defendant's innocence, but such a doubt may arise, even when there is no probability of his innocence in the testimony; and, if the jury has not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to acquit him.'

'14. I charge you, Gentlemen of the Jury, that the burden of proof is on the State of Alabama under the plea of self-defense in this case to prove to you beyond a reasonable doubt that the Defendant in this case was not free from fault in bringing on the difficulty and that if you are not satisfied beyond a reasonable doubt that the Defendant brought on the difficulty, then you must find the Defendant not guilty.'

'18. I charge you, Gentlemen of the Jury, that if you are reasonably satisfied from the evidence that Byrd, the prosecuting witness in this cause, provoked or brought on the difficulty out of which the alleged assault in this case grows, then you should find the Defendant not guilty.'

CARR, Presiding Judge.

On an indicment charging assault with intent to murder, the defendant was convicted of the lesser offense of assault with a weapon.

The accused and the alleged assaulted party, Mr. Byrd, with their respective families, lived next door to each other and had so resided for several years.

It appears that the two participants in the affray of instant concern were not on very congenial and friendly terms, and on at least two or three prior occasions they had engaged in arguments, disputes, and near-fights.

On the morning in question, according to the testimony of State's witnesses, the appellant was drunk, and while out in his yard he was cursing. Mr. Byrd took the defendant to task about this conduct and expressed his disapproval of such misbehavior. Some bitter words were exchanged and the appellant started toward Mr. Byrd with a knife. The latter secured a garden hoe and the two parties engaged in a fight. During the encounter the accused inflicted on Mr. Byrd a rather severe knife wound.

The appellant denied that he was drunk or that he cursed. He testified that he did not have a knife and did not know when Mr. Byrd received the wound. He explained that this could have been caused by the sharp edge of the hoe as the tool was wrenched from each other's hands on several occasions during the affray.

Very few objections were interposed during the progress of the trial. We will only respond to rulings which in our view merit discussion.

On several occasions after the court had overruled appellant's objections to questions, the nature of the answers was such that the substantial rights of the accused could not have been in any manner impaired. Minto v. State, 8 Ala.App. 306, 62 So. 376; Brown v. State, 33 Ala.App. 152, 31 So.2d 652; Supreme Court Rule 45.

The undershirt and the top shirt which Mr. Byrd was wearing at the time of the difficulty were introduced in evidence over the general objections of appellant's counsel. According to the scant description disclosed by the evidence, these garments showed bloodstains and also indicated the length and position of the knife wound.

We think the following authorities sustain the rulings of the court in admitting these garments. Long v. State, Ala.App. 44 So.2d 775; Sampson v. State, 19 Ala.App. 671, 100 So. 305; Hanson v. State, 34 Ala.App. 177, 37 So.2d 532; Patterson v. State, 23 Ala.App. 428, 126 So. 420.

We are not unmindful of the line of authorities which hold that it is error to permit in evidence bloody garments which are likely to inflame the mind of the jury, when the evidence adds nothing to the proof already made.

In the case at bar the appellant denied that he inflicted the wound with a knife. This disputed factual issue may have been clarified to some extent by the marks on the garments.

The exhibits were not sent to this court. We have no way of intelligently reviewing the question by examination and inspection. The onus rests upon the appellant not only to show error by the record, but that such error probably injuriously affected his substantial rights. Henderson v. Tenn. Coal, Iron & R. Co., 190 Ala. 126, 67 So. 414; Mosley v. State, 241 Ala. 132, 1 So.2d 593; Kabase v. State, 244 Ala. 182, 12 So.2d 766; Brown v. State, 33 Ala.App. 152, 31 So.2d 652.

Appellant's counsel inquired at some length into the details of prior difficulties between the parties participating in the encounter of instant concern. The solicitor seemed to be content to let all of this in. At least, he did not interpose any objections to its introduction.

In this state of the evidence the court permitted the prosecuting attorney to also inquire into these matters from the mouths of witnesses whose delineations of the circumstances were more favorable to Mr. Byrd as to his culpability and blame.

The applicable rule reflects a sense of justice and fairness in matters of this nature. So, when one party has gone into a conversation or transaction, it is only just and right to afford the opposing party the privilege of bringing out the entire transaction. This favor should be extended although it may result in a decided variance in the accounts as to what did in fact occur.

In the case at bar, the appellant having presented his version of the prior difficulties, the State had a right to make proof of the circumstances according to the contention of Mr. Byrd. Campbell v. State, 32 Ala.App. 461, 27...