Sankey v. State

• Decision Date: 17 January 1901
• Citation: 29 So. 578,128 Ala. 51
• Parties: SANKEY v. STATE.
• Court: Alabama Supreme Court

29 So. 578

128 Ala. 51

SANKEY v. STATE.

Supreme Court of Alabama

January 17, 1901

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Peter Sankey was indicted with two others for an assault with intent to kill. A severance was had, and from a conviction of assault he appeals. Affirmed.

The evidence for the state tended to show that Peter Sankey Harkness Belser, and Gov. Fortner approached a house wherein Phillip Taylor and one Louisa Hart were; that Belser and Fortner had pistols in their hands; that Belser tried to open the door, and, failing, went around the side of the house and fired into it through a crack; that the door was then opened and, as Phillip Taylor came out, Belser leveled his pistol at Taylor and commanded that he return to them their money which the state's evidence tended to show that he had snatched away from them while they were gambling; that Fortner stood by with his pistol in his hand during this conversation, and that the defendant Sankey, though he had no pistol, said that he had to have the money, or he would kill him. The evidence for the defendant tended to show that he said and did nothing during the time Belser and Fortner were talking to Taylor. 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: "(6) If the evidence shows that there was an assault upon Phillip Taylor for the sole purpose of obtaining money from him, then, under this condition of the evidence the defendant could not be convicted; for, although such an act might or would amount to an assault, it would not be the kind of assault included in this indictment. (7) If the evidence shows that there was a common purpose between Belser, Fortner, and defendant to get money from Taylor, and in pursuance of this purpose certain acts were done by one or more of them, then, whether these acts so done did or did not constitute an assault, the defendant cannot, under the indictment, be convicted of such an assault, for this reason Such an assault is not included in this indictment. (8) If you believe the evidence, you cannot, under the present indictment, find the defendant Peter Sankey guilty of a mere assault. (9) Before you can convict the defendant Peter Sankey of an assault, you must believe, beyond a reasonable doubt, from the evidence in the case, that there existed the following facts: First,...