Opinion
5 Div. 854.
December 15, 1931.
Appeal from Circuit Court, Lee County; W. B. Bowling, Judge.
Ed Randall, Sr., was convicted of assault with intent to murder, and he appeals.
Affirmed.
The indictment is as follows:
"The grand Jury of said county charge that before the finding of this indictment, Ed Randall, Sr., Clem Randall, Isaac Randall and Ed Randall Jr., unlawfully and with malice aforethought, did assault Austin Newman, with the intent to murder him, against the peace and dignity of the State of Alabama. [Signed] C. H. Vann, Solicitor, Circuit Court of Lee County."
The grounds of the demurrer are:
(1) "That said indictment is not signed by the Solicitor of the Fifth Judicial Circuit."
(2) "Said indictment is signed by one claiming to be Solicitor of the Circuit Court of Lee County, whereas there is no such office as the Solicitor of the Circuit Court of Lee County."
The following charge was refused to defendant: C. "I charge you, gentlemen of the jury, that before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion, and unless the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty."
Duke Duke, of Opelika, for appellant.
Unless appellant had an intent to willfully and maliciously murder the person assaulted, he could not be found guilty of an assault with intent to murder. Charge B, so instructing, and which was not covered by the oral charge, should have been given. Lawrence v. State, 84 Ala. 424, 5 So. 33; Horn v. State, 98 Ala. 30, 13 So. 329; Chestnut v. State, 7 Ala. App. 72, 61 So. 609. Charge C has been held good in the following cases: Burton v. State, 107 Ala. 108, 18 So. 284; Brown v. State, 108 Ala. 18, 18 So. 811; Pickens v. State, 115 Ala. 42, 22 So. 551. It has been held argumentative by these cases: Allen v. State, 111 Ala. 80, 20 So. 490; Rogers v. State, 117 Ala. 9, 22 So. 666; Amos v. State, 123 Ala. 50, 26 So. 524; Jones v. State, 181 Ala. 63, 61 So. 434; Davis v. State, 209 Ala. 409, 96 So. 187; Minton v. State, 20 Ala. App. 176, 101 So. 169; Dubose v. State, 20 Ala. App. 193, 101 So. 911. The bill or exceptions shows charge Q to have been refused, and appellant should not be put at fault because same was marked "given."
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Requested charge B was properly refused because fairly and substantially covered by the oral charge and given charges. Code 1923, § 9509. Charge C is argumentative. Davis v. State, 209 Ala. 409, 96 So. 187; Rogers v. State, 117 Ala. 9, 22 So. 666; McDaniel v. State, 20 Ala. App. 407, 102 So. 788; Dubose v. State, 20 Ala. App. 193, 101 So. 911. Charge Q is not subject to review as same is not properly indorsed "refused" by the trial judge. Stinson v. State, 223 Ala. 327, 135 So. 571; Batson v. State, 216 Ala. 275, 113 So. 300; Richardson v. State, 22 Ala. App. 277, 114 So. 789; Mason v. State, 16 Ala. App. 405, 78 So. 321. At any rate, the same was substantially covered by other charges and the oral charge.
Appellant was convicted of the offense of assault with intent to murder. Code 1923, § 3303.
The indictment was in proper form, and the demurrers thereto were overruled without error.
No exceptions were reserved, on the taking of testimony.
The oral charge of the court was pronounced satisfactory, by appellant.
Forty written charges, some of them rather lengthy, were given to the jury at his request.
The substance of his written, requested, and refused charge B was fully covered by, and included in, other charges given to the jury.
So, of his written, requested, and refused charge C. Then, besides, this written charge C has, in similar circumstances, been held to be argumentative, and hence properly refused. Davis v. State, 209 Ala. 409, 96 So. 187.
We doubt that we can review the action of the court with reference to appellant's written requested charge Q. The same appears in the record indorsed, "Given," and signed by the trial judge. This would seem to preclude us from giving heed to the recitals of the bill of exceptions that said charge was not, in fact, "given," but was mixed, inadvertently, with the "refused" charges, and never read to the jury. Stinson v. State, 223 Ala. 327, 135 So. 571.
Anyhow, we think that, in so far as it was correct, the substance of said charge was fully and fairly given to the jury, otherwise.
We find nowhere prejudicial error, and the judgment of conviction is affirmed.
Affirmed.