Williamson v. State

• Decision Date: 22 February 1938
• Docket Number: 7 Div. 305
• Citation: 179 So. 398,28 Ala.App. 92
• Parties: WILLIAMSON v. STATE.
• Court: Alabama Court of Appeals

179 So. 398

28 Ala.App. 92

WILLIAMSON v. STATE.

7 Div. 305

Court of Appeals of Alabama

February 22, 1938

Appeal from Circuit Court, De Kalb County; A.E. Hawkins, Judge.

Eldridge B. Williamson was convicted of assault with a gun, and he appeals.

Affirmed.

Scott &amp Dawson, of Fort Payne, for appellant.

A.A Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty Gen., for the State.

BRICKEN, Presiding Judge.

The defendant was tried upon an indictment which charged him with the offense of assault with intent to murder one Ardell Reece, to which indictment he interposed his plea of "not guilty."

The trial resulted in his conviction of an assault with a gun and the jury assessed a fine against him of $100. Failing to pay said fine, and the costs, or to confess judgment therefor, the court sentenced him to hard labor for the county for thirty days, to pay the fine, as the law requires; and to 124 days to pay the cost which amounted to $90.25. In addition thereto, the court sentenced him to imprisonment in the county jail for six months, which term of imprisonment was added by the court.

Upon the trial of this case in the court below no objections were interposed or exceptions reserved to any ruling of the court, except to the action of the court in overruling defendant's motion for a new trial; and the refusal by the court to give several special written charges requested by the defendant.

Charge 1 was properly refused, if for no other reason it referred to the felony charge, which was eliminated by the jury's verdict in finding the defendant guilty of the lesser offense, a misdemeanor, which was included in the offense charged in the indictment.

Charge 2 does not contain a correct proposition of law; it was properly refused.

Charges 3, 4, and 5 were also properly refused, for the reasons above stated.

Among other grounds in the motion for a new trial, it was insisted that "the court erred in his oral charge to the jury." No exception was reserved to the oral charge of the court, therefore no question is presented for review in this connection.

Grounds 4 and 5 of the motion for a new trial are as follows:

"4. The verdict of the jury finding the defendant guilty of assault with a gun is contrary to the evidence as to the instrument with which the assault was committed.

"5. All the evidence in the case as to the instrument with which the assault was committed was that it was done with a pistol and not with a gun as was found by the jury."

The jury returned the following verdict: "We the jury find the defendant guilty of assault with a gun and assess his fine at $100.00." The foregoing verdict followed the instructions of the court in its oral charge as to the form of verdict. As to this the court said: "On the other hand if you are not convinced he is guilty of an assault with intent to murder but that he is guilty of an assault with a gun or simple assault or assault and battery, then your verdict would be, 'We the jury, find the defendant guilty of an assault or assault with a gun and we assess a fine against him of so much, not more than $500.00,' and one of your number sign your verdict." The point insisted upon in this connection is that the evidence disclosed that the defendant assaulted and shot the alleged injured party with a pistol and not with a gun. This insistence is without merit and cannot avail the appellant. The following authorities are conclusive on this point. Hull v. State, 79 Ala. 32; Turner v. State, 97 Ala. 57, 59, 12 So. 54, 55; Taylor v. State, 148 Ala. 565, 42 So. 997; Huckabee v. State, 159 Ala. 45, 48 So. 796, 797; Alabama Great Southern Railway Co. v. McFarlin, 174 Ala. 637, 56 So. 989, 991.

In Hull v. State, supra, the court said: "Under an indictment which charges an assault with a razor, a conviction may be had on proof of an assault with a pocketknife; the two instruments being of the same kind, and the character of the wounds inflicted being substantially the same, the variance is immaterial."

In Turner v. State, supra, the court stated: "The indictment alleges the deceased came to his death by defendant's shooting him with a gun. The proof showed he was shot with a pistol, and defendant objected to the evidence of his having been shot with a pistol; but the court admitted the evidence, and defendant excepted. The...