Thornton v. State
| Decision Date | 21 June 1921 |
| Docket Number | 8 Div. 814 |
| Citation | 18 Ala.App. 225,90 So. 66 |
| Parties | THORNTON v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
Oliver Thornton was indicted for assault with intent to murder convicted of assault and battery with a weapon, and he appeals. Reversed and remanded.
It was shown by the testimony that the two parties, Turner, the man assaulted, and Thornton, the defendant, had had two difficulties, prior to the one upon which this prosecution is based, the first difficulty being at the L. & N. shops, about three months before the present trouble. As to this first difficulty, the defendant asked this question speaking to the defendant himself, "Did he hit you on that occasion with anything?" Also, "Did he cut you on that occasion?" The state objected, the defendant making it known to the court that he expected an affirmative answer to the question, and the defendant excepted. After the second difficulty, the defendant offered to show that the prosecuting witness had made a threat against him, and also propounded the following question "If whether or not on that occasion the prosecuting witness struck you, or attempted to strike you, with a large iron pole."
Defendant also offered to show the size of the pole used. The following portion to the oral charge were excepted to:
"The law says that you may look to the fact that the defendant is interested in the result of this suit in determining what credibility you are to give to his testmony."
Also:
"The state has offered evidence to this case tending to show, if believed by you beyond reasonable doubt, that defendant unlawfully assaulted Turner."
Also:
"The state has offered evidence which tends to show, if believed by you beyond a reasonable doubt, the prosecuting witness, Turner, was doing nothing by word or deed to provoke the defendant."
The other facts sufficiently appear.
Callahan & Harris, of Decatur, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
The indictment in his case charged a felony; the offense of assault with intent to murder. The trial thereunder resulted in conviction, by the jury, of this defendant of an assault and battery with a weapon, the fine being assessed at $250 to which the court imposed an additional punishment of six months' hard labor for the county. From this judgment the defendant appeals.
Upon the trial of this case it was shown that there had been two former difficulties between these same parties; and the court properly ruled that the details and particulars of said former difficulties were not admissible on the trial of this case.
One of the most vital questions in the instant case was who brought on the difficulty, or who was the aggressor. On this point the evidence was in conflict, and in order to shed light on this issue the defendant attempted in many ways, after showing the fact of the two former difficulties, to show also the general nature and the gravity of such former difficulties. The court would not permit the defendant to do this, under the theory that the merits or particulars of the previous difficulties were not admissible, and, as before stated, if these several efforts of the defendant had been to show the details or the particulars or merits of these previous difficulties, the rulings of the court would have been unquestionably right and without error. However, a careful examination of these questions convince us that the court labored under an erroneous impression, and that as a matter of fact the defendant did not attempt to go into or bring out the merits, details, or particulars of the two previous difficulties between those parties, but limited the inquiry, and so made it known to the court, to the collective fact of the general nature or the gravity thereof, and this the law permits. The general rule seems to be that a defendant may prove a former difficulty, the general nature thereof as to whether trivial or grave, but cannot prove the details or particulars thereof. Harrison v. State, 78 Ala. 5. In McAnally's Case, 74 Ala. 9, 18, the court said:
In Gray v. State, 63 Ala. 67, the record showed that the state introduced one Brooks (the injured party), who testified that Gray (the defendant) had been concerned in an assault on him with a knife, whereby he was severely cut in the neck, a short time before the assault charged in the indictment. On this question the court, among other things said, "All this evidence was clearly admissible."
In Harrison v. State, 78 Ala. 5, 10, it was said:
"It was competent for the defendant *** to testify that he had had a previous difficulty with Allen, and to state the general nature of it, so as to show whether it was grave or trivial in character."
In Nelson v. State, 13 Ala.App. 28, 68 So. 573, the question refused to the defendant was:
"State whether or not in that difficulty he [deceased] drew a gun on you [[[defendant]," "State whether or not Pres Horton [the deceased] shot at you the day before you killed him," and,
In commenting on the ruling of the court below, ...
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Rowe v. State
... ... of such a character that its proper interpretation to the ... jury necessarily involved a declaration of its effect. There ... was, at most, only error without injury. Hill v. State, 43 ... Ala. 335." ... And ... like conclusion is announced in Thornton v. State, ... 18 Ala.App. 225, 90 So. 66. In Bristow v. State, 24 ... Ala.App. 439, 136 So. 837, it was observed: "As said by ... the late, learned, and lamented Mr. Justice Somerville, for ... our Supreme Court, in the opinion in the case of Goff et ... al. v. Sellers, 215 Ala. 489, 111 So ... ...
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Dodd v. State, 7 Div. 836.
...Ala. 24, 30, 59 So. 270, 272; Nelson v. State, 13 Ala.App. 28, 68 So. 573; Folkes v. State, 17 Ala.App. 119, 82 So. 567; Thornton v. State, 18 Ala.App. 225, 90 So. 66. the other hand, the State is limited to showing only the fact of a prior difficulty between the accused and deceased, but c......
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Hoomes v. State
... ... admissible in Nelson v. State, 13 Ala.App. 28, 68 ... To like ... effect is the holding in Stinson v. Richardson, 239 ... Ala. 161, 194 So. 508. See also, Woods v. State, 20 ... Ala.App. 200, 101 So. 314; Wright v. State, 19 ... Ala.App. 562, 99 So. 52; Thornton v. State, 18 ... Ala.App. 225, 90 So. 66; McGuff v. State, 248 Ala ... 259, 27 So.2d 241; Sanders v. State, 242 Ala. 532, 7 ... So.2d 483 ... Other ... authorities could be cited, but unquestionably we have ... sufficiently illustrated our view that it was error to ... disallow ... ...
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Craven v. State
...acts may be shown. Defendant may show that on former occasions he assaulted or attacked, beat, waylaid, or shot at him." Thornton v. State, 18 Ala.App. 225, 90 So. 66; Gunter v. State, 111 Ala. 23, 20 So. 632, Am.St.Rep. 17. The court's rulings in this connection were erroneous under the do......