Smith v. State

• Decision Date: 08 June 1891
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

9 So. 408

92 Ala. 30

SMITH v. STATE.

Supreme Court of Alabama

June 8, 1891

Appeal from city court of Decatur; W. H. SIMPSON, Judge.

The appellant, Millard F. Smith, was indicted, tried, and convicted of an assault with intent to murder Christine Smith, his wife, and was sentenced to the penitentiary for 10 years. The testimony for the state tended to show that on one occasion, while the defendant was out fishing in a pond with his wife and three children, the boat was made to capsize. The water in the pond was from three feet to three feet two inches in depth. Upon the capsizing of the boat the defendant took both the two larger children, and placed them in the boat which he had turned back, the right side up; that as the wife and infant were starting to the boat the defendant pushed them down, and as she tried to get up again he caught her by the neck, and held her head under the water; until he was halloed at by some witnesses on the bank; that then he took the wife and infant in his arms, and carried them on the bank, at the same time pushing the boat, in which were the older children, and the wife was afterwards resuscitated. The testimony for the defendant tended to contradict this evidence by showing that the wife was unintentionally thrown down in the water, while the defendant was trying to rescue her and the children. The wife was sick for some time after and there was evidence showing that there were marks of finger-prints about her neck. Upon the examination of the defendant as a witness in his own behalf, he was asked while he was in jail, in the month of December, 1890, if he did not in the presence of the sheriff and his deputies speak of his wife, and say "that she was a damned, whorish bitch that she was the mother of a bastard child, and had brought all this trouble on you; and that if you had to go to the penitentiary she would have to go there too." The defendant objected to this question, and excepted to the court's overruling his objection. He answered: "I did not. I got mad with my wife while in jail, and spoke of her to the sheriff and the deputies, but did not use that language." The sheriff and the deputies testified against the exception and objection of the defendant, that he did use such language to them at the time and place specified. At the request of the state's attorney, the court gave the following written charge: "If the jury believe from the evidence that the defendant is guilty as charged in the indictment, beyond a reasonable doubt, they must not acquit him because there may be a mere probability of the defendant's innocence, unless such probability be a reasonable probability from all the evidence. (2) The doubt of the defendant's guilt must be actual and substantial not mere possibility or speculation. It must not be a mere possible doubt, because everything relating to human affairs and depending upon moral evidence, is open to some possible or imaginary doubt." The defendant excepted to the giving of each of these charges, and also excepted to the court's refusal...