York v. State, 8 Div. 765.

• Decision Date: 18 April 1939
• Docket Number: 8 Div. 765.
• Citation: 28 Ala.App. 510,189 So. 910
• Parties: YORK v. STATE.
• Court: Alabama Court of Appeals

189 So. 910

28 Ala.App. 510

YORK v. STATE.

8 Div. 765.

Court of Appeals of Alabama

April 18, 1939

Rehearing Denied May 9, 1939.

Appeal from Circuit Court, Lawrence County; W. W. Callahan, Judge.

Herman York was convicted of assault with intent to murder, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in York v. State (8 Div 987) 189 So. 913.

S. A Lynne, of Decatur, for appellant.

Thos S. Lawson, Atty. Gen., and Noble J. Russell, Asst. Atty Gen., for the State.

BRICKEN, Presiding Judge.

The undisputed evidence in this case disclosed that in a rencounter with this appellant, Clell Smith, the alleged injured party was seriously, dangerously and desperately wounded by having been cut and stabbed with a knife. In this connection Smith testified "the defendant said he was going to beat hell out of me, and asked me what I was going to do about it, and he stabbed me in the arm and broke it with his knife--broke my left arm. (At this point witness was requested by Solicitor to run up his sleeve and show to the jury whether he had any scar, which he did;) that after that witness started backing down the road and defendant kept stabbing at him, and witness dodged a time or two and slipped off in the ditch, and when he fell in the ditch, he tried to pull up with his left hand, trying to open his knife to defend himself, and couldn't get up with his left arm and defendant stabbed him over the heart twice; that the defendant cut him about the head twice, once on the left and one in front, and twice over the heart. (Witness opened shirt and exhibited to the jury scars on chest;) that the doctor stuck his three fingers in wound as deep as he could; that he was carried to hospital in Decatur; that the first time he went to hospital was March 1st and he stayed a month and ten days, and came home, but was back five different times since then; that one of his ribs was taken out at hospital so as to put in a drain pipe."

On the question as to extent of injuries received, State witness J. H. Smith testified that he is the father of Clell Smith, and also testified as follows: "That he saw Clell about ten minutes after he was injured; * * * that he went with Clell to the hospital, and was in the room when the doctors examined him; that Clell was cut by the side of his heart, had a punctured lung, a bad cut on his arm, a broken arm, a cut along above his ear and the back of his head, and top of his head, and a small stab between his shoulders; that he kept Clell in the hospital from the first of March until the tenth of April, the first time; that afterwards he had to go back--he didn't remember the date; that the doctors did not have to operate again after he went back the second time, but operated the first time, taking out a rib and putting in a drainage to drain his lung; that pus came from his lung; that he was there when this happened; that he was 'cut to the hollow, into the lungs.' "

The foregoing testimony was without dispute or conflict.

As a result of the foregoing, the grand jury indicted appellant for the offense of assault with intent to murder Clell Smith. His trial in the circuit court resulted in his conviction as charged in the indictment, whereupon the court duly adjudged him guilty of assault with intent to murder, and sentenced him to serve an indeterminate term of imprisonment in the penitentiary for not less than five years nor more than six years. Judgment of conviction was pronounced and entered accordingly, from which this appeal was taken.

Upon the trial, a few rulings of the court were invoked upon the admission or rejection of testimony, and exceptions were reserved to the adverse rulings. These particular points of decision are not insisted upon, as manifestly no error prevailed in any of these rulings. In this connection counsel of appellant states in brief: "Since we press only one ground for a reversal, i. e. the refusal of a requested charge, it does not appear necessary to preface our argument with a full statement of fact."

The point of decision above referred to by able counsel for appellant is the action of the court in refusing to defendant charge "3" requested in writing. Said charge reads as follows:

"However fierce or vicious the attack made by defendant is shown by the evidence to have been, if you are reasonably satisfied from the evidence defendant did not at the time intend to murder Smith, you cannot find defendant guilty of an assault with intent to murder."

We cannot accord to the insistence of appellant's counsel that the refusal of the foregoing charge constituted reversible error.

We are of the opinion that the proposition of law contained in said charge was fairly and substantially covered by given charges 1 and 2 requested by the defendant, and also by numerous statements to the jury contained in the court's oral charge. In this connection, the trial judge specifically instructed the jury, among other things, to the effect that to constitute the offense charged, the assault must have been of such a nature as that if death had followed, the defendant would have been guilty of murder in the first or second degree. He correctly...