Sparks v. State, 6 Div. 572

• Decision Date: 30 June 1953
• Docket Number: 6 Div. 572
• Citation: 261 Ala. 2,75 So.2d 103
• Parties: Melvin SPARKS v. STATE.
• Court: Alabama Supreme Court

Page 103

75 So.2d 103

261 Ala. 2

Melvin SPARKS v. STATE.

6 Div. 572.

Supreme Court of Alabama.

June 30, 1953.

Rehearing Denied April 22, 1954.

J. H. McGuire, LeMaistre, Clement & Gewin and Perry Hubbard, all of Tuscaloosa, for petitioner.

Si Garrett, Atty. Gen., L. E. Barton, Asst. Atty. Gen., and Thos. M. Haas, of counsel, opposed.

LAWSON, Justice.

Melvin Sparks was convicted in the circuit court of Tuscaloosa County of the offense of assault with intent to murder. The Court of Appeals affirmed the judgment of conviction.

On the petition of Melvin Sparks, we issued writ of certiorari to review the opinion of the Court of Appeals in so far as it is held therein (1) that the trial court did not err in refusing the general affirmative charge requested by Sparks and (2) that the trial court did not err in sustaining the State's objection to a question asked the witness Holly.

In holding that the trial court did not err in refusing the general affirmative charge requested by the defendant Sparks, the Court of Appeals said in part as follows:

'The prosecution was not required to prove that the accused had the specific intent to take the life of Holly. If he intended to do him grievous bodily harm and this intent was accompanied with present ability to effect it, this would constitute the offense charged in the indictment. Of course, the assault must have been committed without legal excuse or justification. Smith v. State, 88 Ala. 23, 7 So. 103.'

In Smith v. State, 88 Ala. 23, 7 So. 103, cited by the Court of Appeals in support of the statements quoted above, one of the questions presented was whether the trial court erred to a reversal in refusing a written charge requested by the defendant, Smith, which charge was in the following language: 'Before the jury can find the defendant guilty, they must believe, beyond a reasonable doubt, that at the time of the firing of the pistol the defendant had a specific intent to murder Henry White.' (Emphasis supplied.)

In holding that the refusal of that charge did not constitute reversible error, this court said in part as follows: '* * * The specific intent to take life is not assential. An assault with intent to do grievous harm to the person of another, accompanied with ability to effect it, without legal excuse or sufficient provocation, constitutes the offense. * * *'

The language just quoted from Smith v. State, supra, would appear to justify the statements contained in the opinion of the Court of Appeals with which we are presently concerned.

But the language quoted above from Smith v. State, supra, has been explained and qualified. In so far as that case is authority for the proposition that a charge which requires a specific intent to take the life of the person assaulted may be refused without error it is followed. But that case is not followed in so far as it may be said to hold that there can be a conviction for the offense of assault with intent to murder without proof satisfactory to the jury of the existence of an intention to take life. In Walls v. State, 90 Ala. 618, 8 So. 680, after discussing and analyzing the language of the Smith case, supra, Mr. Justice McClellan, writing for the court, said [90 Ala. 618, 8 So. 682]:

'Instructions, therefore, requested by a defendant, which require an acquittal of the felony, unless the jury find from all the evidence in the case that he intended to take the life of the person alleged to have been assaulted, should always be given. If to this form of instruction is added other matter by way of particularizing the necessary intent, as that it must be 'positive,' or 'deliberate,' or 'actual,' or 'specific,' etc., it may well be refused, not because the intent need not be, as matter of abstract law, in a sense positive, deliberate, actual, and specific, but on the ground that the use of these descriptives involves a tendency to mislead the jury. On the other hand, no charge should be given which would authorize a conviction without proof, satisfactory to the jury, of the existence of an intention to take life, or which would require a conviction on any postulation of facts, although the jury may believe, these facts to the contrary notwithstanding, that the defendant had no actual intention to take the life of the party assaulted, or which declares that no actual intention to take life is necessary. Of this sort were the charges given for the state in the case at bar. They are more than misleading. They are erroneous; and in giving them the trial court fell into error, which is fatal to the judgment rendered.'

In Ray v. State, 147 Ala. 5, 41 So. 519, 521, we pointed out that the opinion in Walls v. State, supra, explained and qualified the opinion in Smith v. State, supra:

'The defendant was indicted and tried under section 4346 of the Code of 1896, which provides: 'Any person who commits an assault upon another, with intent to murder,' etc. And in order to convict the defendant it is incumbent upon the state to prove that the assault was committed with the intent to murder; but, like malicious intent in murder, it may be inferred by the jury from the character of the assault, the use of a deadly weapon, and the other attendant circumstances. Walls v. State, 90 Ala. 618, 8 So. 680 (where the case of Smith v. State, 88 Ala. 23, 7 So. 103, is explained and qualified); * * *.'

The State concedes the incorrectness of the statements in the opinion here under review to the effect that a conviction under an indictment charging the offense of assault with intent to murder can be had on proof showing no more than that the accused intended to do grievous bodily harm to the assaulted party, provided such intent to do grievous bodily harm is accompanied with present ability to effect such harm.

The State contends, however, that such incorrect statements should not work a reversal of the judgment of the Court of Appeals because it affirmatively appears in the opinion under review that the Court of Appeals was aware of the correct rule. The State has reference to the two paragraphs which immediately follow the incorrect statements. Those paragraphs read as follows:

"An assault with murderous intent, having the adaptation of apparent means to that end, is the evil aimed at by the statute, and one may transgress the statute by merely aiming a loaded gun at another, having a murderous intent.' Dobbins v. State, 15 Ala.App. 166, 72 So. 692, 693.

'See also, Newton v. State, 92 Ala. 33, 9 So. 404; Crawford v. State, 86 Ala. 16, 5 So. 651; Christian v. State, 133 Ala. 109, 32 So. 64.' (Emphasis supplied.)

We do not agree. When considered in connection with the cases which are cited immediately thereafter, we are inclined to the view that the quotation from Dobbins v. State, supra, was inserted primarily because of that part of the quotation which we have italicized above. In any event, we cannot say that the incorrect statements were placed in the opinion under review merely as filler and had no influence on the Court in reaching its conclusion that the defendant Sparks was not entitled to the general affirmative charge as requested by him. Such statements were not irrelevant to the issue but related directly thereto.

We come now to consider the second question, the holding of the Court of Appeals that the trial court did not err to a reversal in sustaining the State's objection to a question asked the State's witness Joe Holly on cross-examination by counsel for Sparks. Joe Holly is the alleged assaulted party.

In order to obtain a better understanding of the ruling of the trial court with which the Court of Appeals was concerned, we have gone to the record, as we are permitted to do for that purpose. Sinclair Refining Co. v. Robertson, 247 Ala. 260, 23 So.2d 872; Mutual Sav. Life Ins. Co. v. Osborne, 247 Ala. 252, 23 So.2d 867; John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., 236 Ala. 546, 184 So. 273; Southern Building & Loan Ass'n v. Holmes, 227 Ala. 1, 149 So. 861.

During the cross-examination of Joe Holly the following occurred:

'Q. Do you recall making a statement to Mr. Thrower to this effect, 'Mr. Sparks didn't hit me.'

'Mr. deGraffenreid [of counsel for the State]: We object.

'The Court: Overruled.

'Mr. deGraffenreid: There is no time or place shown, and the man is not properly identified.

'The Court: I guess you had better limit it.

'Q. After this came up, after it happened, do you recall making a statement to Mr. Thrower to this effect, 'Mr. Sparks didn't hit me, it was Frank Sailors that tore my head up.'

'Mr. deGraffenreid: We object.

'The Court: Sustained.

'Q. At your apartment, at your home, after this fracas came up and you were talking about the trouble you had down there and talking about the injuries to your head, do you recall making a statement to Mr. Thrower to this effect, 'Mr. Sparks didn't hit me,' that it was Frank Sailors that tore my head up and hit me?

'Mr. deGraffenreid: We object it is still not properly identifying the man, he could been any Thrower, it is not shown who he was.

'The Court: I sustain on the grounds that they haven't shown the time.

'Mr. Marshall [counsel for defendant]: We except.'

Exception was taken only to the last ruling, so evidently it is of that ruling that the Court of Appeals said in its opinion as follows:

'Appellant's counsel attempted to lay a predicate by asking Holly if he did not make a statement to Mr. Thrower at the home of the witness. The predicate was not complete. The time was not indicated, nor did it include the inquiry if other parties were present. The court did not err in sustaining the State's objection to the question. Brown v. State, 27 Ala.App. 32, 165 So. 405; Nichols v. State, 27 Ala.App. 435, 173 So. 652.'

The 'predicate' to which the Court of Appeals referred is evidently that to be laid for the purpose of impeaching a witness. The cases cited by the Court of Appeals refer to such a predicate.

The Court of Appeals...