Pitman v. State
| Decision Date | 19 December 1906 |
| Citation | 42 So. 993,148 Ala. 612 |
| Parties | PITMAN v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Monroe County; J. T. Lackland, Judge.
Walter Pitman was convicted of assault with intent to ravish, and appeals. Reversed and remanded.
The defendant was indicted, tried, and convicted for an assault with intent to ravish on Tiny Collins. When Alice and Tiny Collins, witnesses for the state, were being examined, they were each asked by the solicitor, "Did the defendant come into your room that night?" and both answered "Yes, sir." The defendant objected to the question and also moved to exclude the answer, on the grounds, first that the question was leading, and because the answer was given in response to a leading question. In testifying, these witnesses stated that the defendant came into their room that night, and was sitting on the bed of Alice, and that Alice pushed him off of her bed, whereupon he went to bed where Tiny was and put his arms around her neck. Thereupon Alice went to her father's room, and told him about the occurrence, and he came into the room, and fired his pistol three times, and the defendant jumped out of the back window and in a few minutes he was seen going up the steps to his own room. The defendant moved to exclude what was said about the firing of the pistol and the defendant being seen soon afterwards going to his own room, but the court overruled the motion. It also developed in the testimony that the defendant boarded at this house, and it was shown, over the objection of the defendant, that he did not come to breakfast the next morning.
The defendant requested the following written instructions, which the court refused: Charge 1: "I charge you, gentlemen of the jury, that if you believe the evidence you will find the defendant not guilty." Charge 2 is set out in the opinion. Charge 7: "The court charges the jury a probability that some other person may have attempted to ravish Tiny Collins is sufficient to create a reasonable doubt of the guilt of the defendant, and therefore for his acquittal."
Barnett & Bugg, for appellant.
Massey Wilson, Atty. Gen., for the State.
The defendant was convicted of the offense of committing an assault with intent to ravish. As to the first exception, referring to the leading question to Mr. Pitman, it is a matter within the discretion of the court to allow a leading question, and his action is not reviewable on appeal. Brassel v. State, 91 Ala. 45, 8 So. 679.
The testimony about the firing of the pistol, seeing the defendant go up the steps to his room, about whether or not the defendant was in the habit of taking breakfast at the house of the father of the prosecutrix, and did not do so the morning after the offense is claimed to have been committed, were proper circumstances to go to the jury for the purpose of identifying the defendant, showing a reason for his not coming to breakfast, etc. In fact, they were merely slight circumstances, which, if they had no bearing upon the case, could not result in injury, and, if they had any bearing, would only serve to explain actions which might have a legitimate bearing on the question of guilt or innocence. On the other hand, having allowed the prosecution to prove that the defendant was in the habit of eating at the house, and that he did not eat breakfast there the morning after the occurrence, the evident purpose of which was to raise an inference of conscious guilt, it was error to refuse to allow the defendant to answer the question as to whether it was anything unusual for him not to take breakfast at the house, and thus give him an opportunity to answer the inferences to be drawn from the previous testimony.
There was no point made in the case as to the age of the woman upon whom the assault was claimed to have been made, so that the refusal of the court to allow proof of her age could not result in any injury to the defendant. Code 1896, § 4333.
The matter of permitting a witness to be recalled, for the purpose of putting questions to him with a view of impeaching him, rests in the discretion of the court. Consequently the court could not be placed in error for refusing to permit the witnesses J. S. Collins and Tiny Collins to be recalled for that purpose. Vann v. State, 140 Ala. 123, 37 So. 158.
The remarks of the solicitor did not constitute reversible error. He did not state any fact, but was making a "comment upon the evils generally of the crime which the law he was [is] seeking to enforce intends to prevent." Dollar v. State, 99 Ala. 238, 13 So. 575.
There was no error in the refusal of the court to give charge 1, requested by the defendant, as the jury might, under the evidence, have found the defendant guilty of an assault, or assault and battery.
The second charge requested by the defendant was that, "if the jury believe...
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State v. Wilson
... ... defendant not guilty. The action of the court, however, was ... right, if for no other reason than that the jury might under ... the evidence, have found the defendant guilty of an assault, ... and, perhaps, of an assault and battery. Pitman v ... State, 148 Ala. 612, 42 So. 993. We need not determine ... as to whether or not the information in this case is ... sufficient to include the latter crime in the crime charged, ... but as to its inclusion therein generally see Tiller v ... State, 101 Ga. 782, 29 S.E. 424; Sutton v ... ...
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...having committed the crime. Spencer v. State, 228 Ala. 537, 154 So. 527; Goocher v. State, 227 Ala. 337, 149 So. 830; Pitman v. State, 148 Ala. 612, 42 So. 993. Moreover, the general principle sought to be stated was adequately covered in Charge 18 given at defendant's Charges 37 and 38 inv......
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...145 So. 656; Ledlow v. State, 221 Ala. 511, 129 So. 282; Ex parte Hill (Hill v. State), 211 Ala. 311, 100 So. 315; Pitman v. State, 148 Ala. 612, 42 So. 993; Spencer v. State, 228 Ala. 537, 154 So. The evidence has been carefully examined, and we are of the opinion that the case becomes a j......
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