Smith v. State , 123 Ala. 64 ( 1898 )

McCLELLAN, C. J.

The fact deposed to by Taylor McWilliams that at the time of the assault upon him he. the witness, was attempting to get possession of a gnn in tlie hands of a third person, Joe Beck, was competent both ¿s going directly to give character to the assault and as part of the res gestae of the assault. It appears that this Joe Beck and one McNeil had made demonstrations against Taylor McWilliams with guns, that at the time of the assault while McWilliams Avas trying ,to disarm Joe Beck, Tate Blackman was engaged in a like attempt to get possession of McNeil’s gun, and that the defendant interposed in the general melee which had been started by the demonstrations of Beck and McNeil against McWilliams and in quick succession struck and cut Blackman and McWilliams. Under these circumstances the scuffle between Blackman and McNeil and the cutting of the former by defendant were parts of a transaction or occurrence embracing also- the assault upon McWilliams, and the testimony of Blackman that McNeil had drawn his gun on McWilliams and that he Avas cut by defendant while he was attempting to take McNeil’s gun from him went to facts Avhich were clearly Avithin the res gestae of the assault upon McWilliams. If the testimony of Blackman in any other respect Avas incompetent, the court Avas yet under no duty to exclude it because the motion to' exclude was general, or. rather the objection taken Avas to everything testified to by this witness; much of which was competent. The generality of the objection was not cured by adding that it was made separately and particularly s,o that it was in this form: “To everything as testified to by .Tate Blackman, defendant separately and particularly objects.”

The indictment charged that the defendant “did-assault and beat” Taylor McWilliams. There is no merit in the position taken for appellant that proof of striking and cutting with a knife does not support this indictment. The charge is in reality merely assault and battery, and is supported by any form of violence to the person. The judgment entry shows that the defendant Avas conAdcted of the offense charged in the indictment and not of an assault Avith a vveapon; and this entry, and not what appears in the bill of exceptions, is con-elusive of the finding and judgment of the court. Besides under this indictment a conviction of assault with a weapon would have been ' proper. — Code, p. 325, Form 9.

This court has no power to review the action of trial courts upon motions for new trials in criminal cases.

Affirmed.