Rogers v. State

• Decision Date: 02 February 1898
• Citation: 23 So. 82,117 Ala. 192
• Parties: ROGERS v. STATE.
• Court: Alabama Supreme Court

23 So. 82

117 Ala. 192

ROGERS v. STATE.

Supreme Court of Alabama

February 2, 1898

Appeal from city court of Gadsden; John H. Disque, Judge.

Bob Rogers was convicted of an assault with a weapon, and he appeals. Reversed.

The averments of the two counts of the indictment are sufficiently stated in the opinion. The defendant demurred to the second count, upon the ground that it was vague indefinite, and uncertain as to the character of the weapon used. This demurrer was overruled, and the defendant duly excepted. Upon the trial of the cause the testimony for the state tended to show that the defendant came to the place where Tony Stallings, the person assaulted, worked, and sent for said Stallings; that, upon Stallings coming up, the defendant and the person with him jumped at Stallings, and as he ran off, they threw rocks and sticks at him, and fired at him with a pistol. Upon the cross-examination of the state's witness Smith the defendant asked him the following question: "State whether or not Stallings told you, thirty minutes or an hour before the difficulty: 'I played the devil. I have killed Rogers' dog."' The state objected to this question, which objection the court sustained, and the defendant duly excepted. Upon the examination of the witnesses Penn and Adams for the defendant, the defendant asked each of said witnesses the question relative to the killing of the defendant's dog by Stallings. These questions were separately objected to by the state. The court sustained each of the objections, and the defendant separately excepted thereto. The testimony for the defendant tended to show that, upon his seeing Stallings he asked him if he had killed his dog; that Stallings replied in a very insulting and threatening manner that he had, and threw his hand towards his pocket, as if he was about to draw a weapon, and that thereupon the defendant kicked at him and, as he ran off, threw rocks at him, and, when some distance from him, shot in the direction Stallings was, but not with the intention of hitting him. Upon the introduction of all the evidence the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury, if the evidence is in such a state of confusion and uncertainty as that the jury are not convinced of defendant's guilt beyond all reasonable doubt, the jury must acquit the defendant." (2) "The court charges the jury, if the jury believe from the evidence that Tony Stallings made use of any opprobrious words or abusive language at or near the time of the difficulty towards Rogers, the jury may consider such words or language in extenuation or justification as the jury may determine." (3) "The court charges the jury, if the jury are not satisfied beyond all reasonable doubt, to a moral certainty,...