Opinion
7 Div. 320.
March 22, 1955. Rehearing Denied August 9, 1955.
Appeal from the Circuit Court, Shelby County, A.L. Hardegree, J.
The following charges were refused to defendant:
"5-A. The court charges the jury that the State has elected to rely on the act of the defendant in hitting officer Looney while such officer was standing and the court further charges the jury that the intention of the defendant at the time he hit the officer while he was standing is the sole issue before you."
"6-A. The court charges the jury that the State has elected to rely on the defendant's hitting the officer with a pistol to sustain a conviction."
"10. The Court charges the jury that under the evidence in this case, the State has failed to show that officer Looney was legally authorized to attempt the arrest of the defendant; and that in marking such attempt, he was committing a trespass, which the defendant had a right to resist, provided such resistance was not greatly disproportionate to the threatened injury."
Wales W. Wallace, Jr., Columbiana, for appellant.
The general reputation of an injured party for specific traits of turbulence is admissible in a criminal case to shed light on the controversy where issue of self defense is involved. Pate v. State, 162 Ala. 32, 50 So. 357; Long v. State, 23 Ala. App. 107, 121 So. 453; Hembree v. State, 21 Ala. App. 577, 110 So. 171; Id., 215 Ala. 246, 110 So. 172; Savage v. State, 20 Ala. App. 97, 100 So. 919. Assault with intent to murder is an assault to take a life under circumstances which, if successful, would constitute murder in either degree and hence malice is an essential ingredient of the offense. Stovall v. State, 34 Ala. App. 610, 42 So.2d 636; Id., 252 Ala. 670, 42 So.2d 639; Bowen v. State, 32 Ala. App. 357, 26 So.2d 205. A person is under no duty to submit to an unlawful arrest and such arrest may be resisted so long as the force used in resisting is not greatly disproportionate to the threatened injury. Browning v. State, 31 Ala. App. 137, 13 So.2d 54; Sanders v. State, 181 Ala. 35, 61 So. 336. A defendant in a criminal case is entitled to have charges given, which without being misleading, correctly state the law of his case, and are supported by any evidence however weak, insufficient, or doubtful in credibility. Gibson v. State, 89 Ala. 121, 8 So. 98; Duncan v. State, 30 Ala. App. 356, 6 So.2d 450; Bradberry v. State, 37 Ala. App. 327, 67 So.2d 561.
John Patterson, Atty. Gen., and Paul T. Gish, Asst. Atty. Gen., for the State.
It was proper to refuse to allow defendant to show the officer's reputation for particular traits such as inquired about, by going into details thereof. 40 C.J.S., Homicide, § 272 (d). The general rule, where evidence tends to show accused acted in self defense, that evidence is admissible to show the injured party's bad reputation for turbulence and violence, is restricted by the requirement that such reputation was known to accused. Clinkscale v. State, 37 Ala. App. 593, 73 So.2d 244; Wiley v. State, 99 Ala. 146, 13 So. 424. The evidence does not show that defendant was free from fault in bringing on the difficulty, or that he used no more force than necessary to avert death or great bodily harm. The evidence being in conflict, the question of defendant's guilt was properly left to the jury.
The appellant, Onzell McGraw was indicted and adjudged guilty of the offense of assault with intent to murder. The assaulted party was a police officer of the town of Vicent, Alabama.
The alleged offense was committed at an athletic field where a softball game had been in progress. After the game was over the officer questioned the accused because the latter had taken a girl away from the field. It appears that the girl had earlier cut another person with a knife. There was some evidence that the defendant was drunk or drinking and he used abusive or obscene language when he was accosted by the officer. The policeman attempted to arrest the appellant, but his effort was resisted. A fight followed in which others, besides the defendant, participated. During the affray the appellant secured the officer's pistol and hit the latter a severe blow over the head with the weapon. There is a conflict in the evidence as to whether or not there were one or two licks struck. The officer was "knocked out."
The court permitted the appellant to prove that the injured party had a bad reputation in the community as a police officer. However, the trial judge sustained the State's objections to this question: "I will ask you this; do you know his (the officer) general reputation in the community in which he lives for shooting a man without giving him a chance when he was arresting him?"
When this effort was made evidence had been introduced which tended to establish that the defendant was acting in self-defense. In this state of the record it was permissible to prove that the assaulted party had a reputation as a turbulent, violent, bloodthirsty person. Pate v. State, 162 Ala. 32, 50 So. 357; Wright v. State, 252 Ala. 46, 39 So.2d 395.
We entertain the view, however, that the question of instant concern was bad in form and verbiage. It was an attempt to prove the indicated reputation of the officer by specific or particular acts. Lovejoy v. State, 33 Ala. App. 414, 34 So.2d 692; Jones v. State, 20 Ala. App. 247, 101 So. 331; Stephens v. State, 17 Ala. App. 548, 86 So. 111.
The question also called for a conclusion of the witness and imposed an interpretation of what constitutes a legal right.
When the introduction of the evidence had been concluded, the defendant's attorney made a motion to require the State to elect as to which of the acts of the defendant it would rely upon for a conviction.
The Solicitor stated: "The State stipulates and elects to seek a conviction against this defendant on the second act on the part of this defendant in hitting Mr. Looney over the head with a pistol."
According to the State's evidence the defendant hit the officer twice with the pistol. First while the latter was lying on the ground and again while he was standing. The Solicitor elects to rely "on the second act."
In order to focus the mind of the jury on the stipulation of the Solicitor, appellant tendered written charges 6-A and 5-A. Both were refused. Charge 6-A does not accurately follow the language of the stipulation.
All that transpired during the affray constituted a part of the res gestae. The Solicitor's stipulation did not destroy the materiality of this evidence nor did it deprive the jury of the privilege of considering all that occurred in order to arrive at the material question of the intent of the accused. Charge 5-A is, therefore, misleading.
Refused charge 2-A is not based on the evidence. Edwards v. State, 205 Ala. 160, 87 So. 179; Knighten v. State, 35 Ala. App. 524, 49 So.2d 789.
Refused charges 10, 11, B, C and D are invasive of the province of the jury.
There is evidence that the defendant was drinking and disorderly at the time of the attempted arrest. If so the officer had a right to make the arrest on this account.
Appellant's attorney in a well prepared brief urges that we should disturb the action of the lower court in overruling the motion for a new trial on the stated grounds that the verdict is contrary to the great weight of the evidence.
There is much conflict in the evidence. The verdict is amply supported by the testimony in the State's behalf. According to this proof the accused exceeded his legal rights in striking the officer. We would be out of line with the familiar authorities to adhere to the insistence of the appellant's counsel.
We have given due consideration to the presented questions which we have not discussed. There is no merit in any of these.
The judgment below is ordered affirmed.
Affirmed.
On Rehearing.
In his application for rehearing counsel for appellant insists that we erred in our conclusion that the lower court properly sustained the objection to the question propounded by appellant to one of his witnesses as to the "police officer's general reputation in the community in which he lives for shooting a man without giving him a chance when arresting him."
We adhere to our former conclusion on this point, and in addition to the cases cited in the original opinion in support of our conclusion we add the case of Singley v. State, 256 Ala. 56, 53 So.2d 729.
At appellant's request we also set forth refused charge 2-A, which is as follows:
"The Court charges the jury that unless you are convinced beyond all reasonable doubt that the defendant struck officer Looney with a pistol with malice aforethought, intending to murder him, you cannot find the defendant guilty of assault with intent to murder."
As to the propriety of the lower court in refusing this charge we adhere to our former ruling.
Counsel for appellant also states in his brief in support of the application for rehearing that the court erred in sustaining the State's objection in the following instance, as shown by the record:
"Q. Mr. Looney, do you recall an occasion in 1948 when you ran into the car of this boy McGraw here? A. I remember when he run into me.
"Q. State whether or not on that occasion you held a gun on him and made him pay you $5.00 for damages? A. No.
"By Mr. Fowler: We object.
"By the Court: Sustain the objection.
"By Mr. Wallace: I except and expect the evidence to show he did."
As shown by the above excerpt, nothing is presented to us for review. The objection came after the answer was made. In addition, had the objection been timely made, the court should have sustained an objecton to it, inasmuch as it called for particulars and details of the alleged former difficulty. Wright v. State, 252 Ala. 46, 39 So.2d 395.
Application denied.
BONE, J., recuses himself because not a member of the court when the case was originally argued.