Miller v. State , 20 Ala. App. 354 ( 1924 )

The indictment charges assault with intent to murder, and the verdict and judgment was for an assault and battery, as charged in the indictment. This was an acquittal of the higher offense charged, and any error in refusing charges dealing solely with the higher offense was without injury. This disposes of all the charges refused to the defendant. It may be observed, however, that they were fully covered by the oral charge of the court or by instructions given at defendant's request. Some of these charges also possess inherent vices that rendered their refusal free from error.

The remarks of the court in connection with given charge 8 requested by defendant were not of such a character as to be harmful to defendant. Collier v. State, 209 Ala. 608, 96 So. 755. The charge might have been well refused as not predicated upon the evidence, and the court's statement relative thereto was a proper statement of the law, but, as observed above, the defendant was acquitted of the higher offense, and no injury resulted to him by the remarks of the court. Other errors noted refer to matters of evidence.

All of the state's witnesses, except two, were permitted to detail a conversation had with the defendant on the morning following the shooting concerning the shooting and defendant's connection therewith. So far as appears, these statements were all voluntary. In any event, proper and full predicate was laid by each witness before the statements were testified to. As confessions, the statements of defendant were properly admitted. Jones v. State, 18 Ala. App. 626, 93 So. 332; Poe v. State,155 Ala. 31, 46 So. 521; Perry v. State, 91 Ala. 85, 9 So. 279.

The admission of the evidence of the fact that a few weeks prior to the shooting the defendant said, "If they don't stop passing by here singing, I am going to shoot somebody," was without error. The person assaulted was doing that particular thing — singing Holy Roller songs — at the time he was shot, and a few weeks after the threat was made. The shirt worn by the person shot at the time he was shot was shown to be in the same condition at the trial as at the time of the shooting. It is well settled that as such it was admissible.

The testimony of the witness Williams that the hole through a cornstalk near where the defendant was at the time he was shot "looked like a bullet" was a shorthand rendering of a fact, and not erroneous. Fuller v. State, 117 Ala. 36, 23 So. 688. This disposes of all questions presented to the Court.

There is no error.

Affirmed.

On Rehearing. The evidence of Jim Cagle, a witness for the state, that he had a conversation with the defendant two or three weeks before the shooting in which defendant said "if they didn't quit passing his house singing he was going to shoot them," was not part of the res gestæ, but was in the nature of a threat against a class to which the injured party belonged (those who passed defendant's house singing). The injured party passed the defendant's house singing Holy Roller songs, and such a threat against those of that class to which the injured party belonged and prima facie referable to him, though his name was not mentioned, was admissible in evidence. Such a threat may be only slight evidence, yet be competent for the jury to consider in connection with the other evidence. Sharpe v. State, 193 Ala. 22, 69 So. 122; Patterson v. State, 202 Ala. 65, 79 So. 459; King v. State, 19 Ala. App. 153,96 So. 636.

The application for rehearing is overruled.