Sanders v. State

• Decision Date: 14 July 1923
• Docket Number: 4 Div. 753.
• Citation: 97 So. 294,19 Ala.App. 367
• Parties: SANDERS v. STATE.
• Court: Alabama Court of Appeals

97 So. 294

19 Ala.App. 367

SANDERS v. STATE.

4 Div. 753.

Court of Appeals of Alabama

July 14, 1923

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

John Sanders was convicted of assault with intent to murder, and appeals. Judgment affirmed; remanded for proper sentence.

McDowell & McDowell, of Eufaula, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

FOSTER J.

The defendant, appellant, was convicted of assault with intent to murder. The evidence for the state was directed to showing that Jim Smith was hitching two mules to a wagon, and that defendant passed him a short distance and without provocation turned and shot him twice with a gun.

The defendant contended that Jim Smith had made threats to kill him, that Smith provoked the difficulty and "broke after the defendant," that defendant ran a short distance and, looking back, saw Jim Smith following him with his hand in his bosom, cursing him, and telling him he was going to kill him, and that defendant turned and shot Smith. It was competent to show by the witness Long the condition of Jim Smith, the injured man, after he [Long] reached the scene of the difficulty about 40 minutes after the shooting, as tending to show the extent of the injuries. Little v State, 18 Ala. App. 98, 89 So. 303.

It was competent to show that, when witness Long came upon the scene, the defendant, with a shotgun in his hand, was standing a short distance away from the injured man. Evidence of the conduct, demeanor, acts, expressions, or appearance of the accused, shortly before, at the time of, and shortly after the alleged crime, are admissible against him. Maddox v. State, 159 Ala. 53, 48 So. 689; 4 Michie's Ala. Dig. p. 183, § 258 (1 b a.)

What Long had at the time he demanded that the defendant surrender the gun to Sylvester, and the statement of Long that "he saw I had a pistol" were immaterial and inadmissible and the latter statement was objectionable, because it was a mere conclusion of the witness. A witness may not give his opinion as to what the defendant saw. The facts on which the witness formed his opinion should have been stated and the resulting conclusion was in the exclusive province of the jury. Bailey v. State, 107 Ala. 151, 18 So. 234.

A general objection was interposed to each of the questions. When the questions elicit testimony which is not patently and palpably inadmissible for any purpose, without special objection pointing out the grounds of its irrelevancy or illegality, the general objection to the question is properly overruled. Washington v. State, 106 Ala. 61, 17 So. 546; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am. St. Rep. 17; Nickerson v. State, 6 Ala. App. 27, 60 So. 446.

Evidence of a previous difficulty between the defendant and the injured party is admissible, but the particulars or merits of that difficulty cannot be inquired into. It was not permissible to show that the injured party was running after the defendant the night before the difficulty, as this was an inquiry about the details of the previous difficulty. Martin v. State, 77 Ala. 1; 1 Mayf. Dig. p. 331...