Wray v. State
| Decision Date | 21 December 1911 |
| Citation | 57 So. 144,2 Ala.App. 139 |
| Parties | WRAY v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Criminal Court, Jefferson County; M. Frank Cahalan Judge.
Richard Wray was convicted of assault and battery, and he appeals. Affirmed.
The affidavit as amended, omitting the formal charging part, is as follows: "J. J. Barber, who, being duly sworn, says that he has probable cause to believe and does believe that Richard Wray, alias Dick Wray, whose name is otherwise unknown to affiant, within 12 months before making this affidavit, in said county, did unlawfully assault Arlie Barber with a pistol or other weapon, or did unlawfully assault Arlie Barber, or did unlawfully assault and beat Arlie Barber." The demurrers raise the question as to the alternative averment, both as to the means and as to the offense, and the fact that the affidavit charged the commission of more than one offense. The portion of the oral charge excepted to is as follows:
C. P Beddow and Gibson & Davis, for appellant.
R. C Brickell, Atty. Gen., and William L. Martin, Asst. Atty Gen., for the State.
The amended affidavit charged offenses of equal degree, subject to the same punishment, and was not subject to the demurrers interposed. Such offenses may be charged in the alternative. Code 1907, §§ 6306, 7151; Bonner v. State, 97 Ala. 47, 12 So. 408; McClellan v. State, 118 Ala. 122, 23 So. 732; Sims v. State, 135 Ala. 61, 33 So. 162.
Under the charge preferred, the defendant could be convicted of assault and battery.
Smith v. State, 123 Ala. 64, 26 So. 641.
It was competent to show what was done and said by those present during the commission of the assault, both as directly going to give character to the assault and as part of the res gestæ. Smith v. State, 123 Ala. 64, 26 So. 641.
The objections to the questions asked the witness Fulton about a discussion and what was said at another time than on the occasion of the assault, and subsequent to the assault, were properly sustained. The question asked this witness, "Did not Mr. Barber have a hatchet and expect outsiders?" called for testimony by the witness of the mental status of another person, and an objection to it was properly sustained. What the witness told an officer or others after the assault was not admissible.
It was not proper to allow the prosecuting witness to testify, on cross-examination,...
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