Opinion
2 Div. 673.
February 13, 1940. Rehearing Denied February 27, 1940.
Appeal from Circuit Court, Greene County; Benj. F. Elmore, Judge.
Elmer Turner was convicted of attempt to murder, and he appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Turner v. State, 239 Ala. 238, 194 So. 689.
E. F. Hildreth, of Eutaw, for appellant.
Everything said or done at or near the time and place of the difficulty and closely connected therewith is admissible as part of the res gestaelig. Lovell v. State, 18 Ala. App. 555, 93 So. 216; Whigham v. State, 20 Ala. App. 129, 101 So. 98; Holladay v. State, 21 Ala. App. 405, 108 So. 641. All the parts of one continuous transaction, though not shown to have any immediate connection with the offense which was the consummation of all the circumstances, and facts proximate to its commission, which tend to shed light on the main inquiry, are admissible as evidence. Jordan v. State, 81 Ala. 20, 1 So. 577. Evidence of shots in wall is admissible as relating to the locus and as corroborating testimony of the defendant as to the place where the alleged difficulty took place. Roberts v. State, 25 Ala. App. 477, 149 So. 356; Williams v. State, 147 Ala. 10, 41 So. 992; Phillips v. State, 161 Ala. 60, 49 So. 794.
Thos. S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.
It was not error to sustain objections to proposed evidence as to defendant's warning to the injured party to leave his wife alone and as to what said party did while in defendant's home. At the time the questions were asked there was no evidence tending to show self defense. Lee v. State, 16 Ala. App. 53, 75 So. 282; McWilliams v. State, 178 Ala. 68, 60 So. 101. Moreover, previous conversations between defendant and the assaulted party, as well as the alleged actions of the latter in defendant's house could have no bearing upon the question of defendant's justification in shooting such party. Time alone is not the criterion for the admission of evidence as of the res gestæ it must be relevant. Domingus v. State, 94 Ala. 9, 11 So. 190. The defense was not justification by reason of defendant's being aroused by the party's action toward his wife so that the unwritten law should apply; but it was self-defense.
The indictment charges that the defendant unlawfully and with malice aforethought assaulted Vester Purse with intent to murder him.
The verdict of the jury as returned in the court was as follows: "We, the jury, find the defendant guilty of attempt to murder, as charged in the indictment." Based upon this verdict, the judgment of the court was that the defendant, Elmer Turner, is guilty of attempt to murder as charged in the indictment.
The verdict and judgment as recorded in the minutes of the court are not in the usual form and, therefore, present the question as to whether or not the finding of the verdict of the jury is responsive to the indictment and whether the judgment rendered by the court is equivalent to a judgment for an assault with intent to murder.
According to the second definition given in "Webster's International Dictionary", "an attempt" is: "an assault, as an attempt upon one's life."
In Broadhead v. State, 24 Ala. App. 576, 139 So. 115, 117, Bricken, P. J., gives this definition: "A criminal attempt to commit a crime consists of two important elements: First, an attempt to commit the crime; and, second, a direct ineffective act done towards its commission."
In Burton v. State, 8 Ala. App. 295, 62 So. 394, it was held: An attempt to commit a crime is an act done beyond mere preparation, with intent to commit it but falling short of its actual commission. Alabama Digest, Criminal Law, 44. Thus it would appear that the verdict of the jury is responsive to the indictment, and that the judgment rendered upon the verdict is sufficient upon which to base the sentence.
The evidence for the State tended to prove that the defendant was guilty of an unprovoked assault upon the person of Vester Purse, and that the assault took place in a field seventy-five or one hundred yards from defendant's house. The State's evidence further tended to prove that the assault was with a shot gun, fired by the defendant into the back of the person assaulted.
The evidence for the defendant tended to prove that the difficulty between the defendant and Purse took place in the house of the defendant, and in the room where the defendant's wife was at the time in bed. The evidence for the defendant further tended to prove that defendant's wife was in her bedroom; that Purse was sitting on the side of the bed with his clothes unbuttoned and his boots off; at which time the defendant came into the room and caught them in this attitude; that the difficulty immediately arose between the two; that defendant grabbed his shot gun, ordered Purse out of his house, and as Purse made a motion to draw a weapon, defendant fired, striking him at some place about the shoulders.
Everything said and done at the time and place was relevant and admissible as a part of the res gestae. In passing upon the question, and jury was entitled to a full description of the locus in quo, and everything said and done between the parties leading up to and connected with the shooting.
The rulings of the trial judge were not in accord with these views.
The defendant was entitled to prove that at the time he (defendant) came into his wife's room she was in bed; that Purse came into her room while defendant was not there; that Purse was partially undressed with his shoes off and was taking his breeches off when defendant came into the room. All of these facts were a part of the res gestae, and should have been admitted.
There being some evidence tending to prove that the defendant shot in self-defense, it was relevant to prove that at the time of the difficulty the defendant went into his wife's room in his home and found Purse in a compromising position with his wife, and in connection with this fact, it was relevant to prove that the defendant had warned Purse to stay away from his home and to let his wife alone.
The rulings of the court were not in accord with the foregoing, and for that reason the judgment is reversed and the cause is remanded.
Reversed and remanded.
NOTE. The foregoing opinion was prepared by the late Judge SAMFORD. Since his untimely death, this court has considered this case En Banc. We are clear to the conclusion that said opinion is correct in all things; therefore, it is hereby approved and is made and adopted as the opinion of this court.