Scott v. State
| Decision Date | 19 October 1916 |
| Docket Number | 7 Div. 339 |
| Citation | 15 Ala.App. 267,73 So. 212 |
| Parties | SCOTT v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, De Kalb County; W.W. Haralson, Judge.
Wallace Scott was convicted of assault with intent to murder, and he appeals. Affirmed.
Hunt & Wolfes and Isbell & Scott, all of Ft Payne, and M.W. Howard, of Birmingham, for appellant.
W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.
The defendant was indicted and convicted of the offense of an assault with intent to murder and given a sentence of two years in the penitentiary.
The undisputed evidence shows that the defendant and the assaulted party occupied and conducted adjoining farms; that the assaulted party had erected a dam across a ditch on his land (or land rented and occupied by him), which caused water to flow upon the lands of the defendant, and engendered bad feeling between the parties; that on a certain Sunday in April, 1914, the defendant, accompanied by some of his relatives, went to the place where the dam had been constructed; that an altercation took place between the parties which was participated in by the families or relatives on both sides; that, in fact, there was a pitched battle, in which rocks, guns, pistols, and opprobrious words were freely used, resulting in the party who is alleged to have been assaulted being shot in the arm and some other part of the body, but just what part is not made clear by the evidence as set out in the bill of exceptions. The testimony of the state tends to show that the defendant and his relatives who accompanied him to this place were the aggressors and entirely at fault in bringing on the difficulty. The testimony introduced in behalf of the defendant has a contra tendency.
The assaulted party, the prosecuting witness William McPherson had testified that he had erected the abutment, or dam, and there was no conflict in the evidence as to this, and to the fact, testified to by the defendant, that the dam caused the water from the ditch to flow on the lands of the defendant. The ruling of the court, therefore, in not permitting the witness Mack McPherson to testify to these facts, if error, was without injury. Murphy v. State, 118 Ala. 137, 23 So. 719; Descrippo v. State, 8 Ala.App. 85, 62 So. 1004; McGuire v. State, 3 Ala.App. 40, 58 So. 60.
The court properly sustained the solicitor's objections to questions propounded by defendant's counsel to the defendant's witness Tom Scott, the father of the defendant, seeking to elicit facts going to show that he had, some time previous to the difficulty, been to see an attorney about bringlng a civil action against McPherson for placing the abutment or dam in the ditch. This testimony had no bearing on the case and was clearly irrelevant and immaterial.
The question put to the defendant when being examined as a witness in his own behalf, "If you have anything further to state about this case, go on and state it," was too general, and there was no error in sustaining the solicitor's objection to it. Phillips v. State, 162 Ala. 14, 50 So. 194; Ross v. State, 139 Ala. 144, 36 So. 718.
Why, or for what undisclosed purpose, the witness Smart went to the embankment with the Scotts, was clearly not legal evidence. The question called for an undisclosed motive. Nor was it admissible to permit this witness to testify to the motive or purpose of Scott in going to the place where the embankment or dam had been erected. Such evidence would be purely hearsay, or the cognition of another, to which a witness cannot testify. Bailey v. State, 107 Ala. 151, 18 So. 234; L. & N.R.R. Co. v. Perkins, 165 Ala. 471, 474, 51 So. 870, 21 Ann.Cas. 1073.
The question asked the witness Bill Smith as to an invitation extended to him by one of the Scotts to go down and view the embankment called for a self-serving conversation clearly not a part of the res gestae of the offense charged against the defendant, and the court properly refused to permit the question to be answered.
The fact that, a short time before the difficulty, some of the Scotts had taken out peace proceedings against Bill McPherson, and that they had been abandoned and dismissed on McPherson's promise to "let the Scotts alone," had no legitimate tendency to prove the guilt or innocence of the defendant, Wallace Scott (who is not exen shown to have been cognizant of the transaction), of the crime charged against...
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