Smith v. State, 4 Div. 873.
| Decision Date | 12 April 1932 |
| Docket Number | 4 Div. 873. |
| Citation | 141 So. 265,25 Ala.App. 79 |
| Parties | SMITH v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.
Joe Smith was convicted of murder in the second degree, and he appeals.
Reversed and remanded.
T. S Frazer, of Union Springs, for appellant.
Thos. E. Knight, Jr., Atty. Gen., for the State.
From a judgment of conviction for murder in the second degree this appeal was taken.
Upon the trial it was admitted by the accused that Willie Austin the deceased named in the indictment, came to his death from a bullet wound fired from a pistol in his (appellant's) hands. In this connection the defendant strenuously insisted that the killing was wholly accidental and unintentional and claimed that he had never at any time entertained any ill will or bad feelings towards deceased, nor had they ever had any trouble or difficulty with each other.
The indictment charged murder in the first degree, and in the oral charge to the jury the court said: An exception was reserved to the foregoing excerpt of the oral charge, whereupon the court stated that he would withdraw from said charge the word "assailed," and say in lieu thereof that the defendant's character was "put in issue." A further exception was reserved to this statement of the court. That the foregoing statement was misleading confusing, and prejudicial, there can be no doubt. The finding of an indictment preferring charges against a person does not have the effect of "assailing" the character of the person indicted, nor does it operate to put the defendant's character in issue. An indictment is not evidence in any sense of the word. Its true and sole use is to charge the crime, and to inform the accused of the offense alleged against him. The exception to the foregoing is properly presented, and is well taken.
As stated, there was no denial upon the part of the defendant that he had a pistol in his possession at the time complained of in the indictment; evidence, therefore, as to his carrying a pistol on other occasions wholly disconnected with the offense charged was irrelevant and immaterial. It was also error to permit the state, over the objections and exceptions of ...
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