Elmore v. State

140 Ala. 184

• Court: Supreme Court of Alabama
• Decided: November 15, 1903
• Status: Published

Opinion

TYSON, J.

The indictment avers that the defendant “did unlawfully present * * * a gun, pistol, or other firearm,” etc.

Objection to it is taken by demurrer on the ground that the words “other firearm” are too indefinite and uncertain. Perhaps if these words were descriptive of the means used by which an offense was committed, the point would be well taken.—Hornsby v. State, 94 Ala. 55. But since they are the words employed by the statute (§ 4342 of the Code) and the presentation of any fire arm at another, whether loaded or unloaded, is made an offense, the allegation is sufficient.—McClellan v. State, 118 Ala. 122.

The court correctly ruled that the wife of the defendant was not a competent witness. It is of no consequence that she was not his wife at the time the offense was committed. She bore that relation toward him at the time she was offered as a witness, and to permit her to testify Avould clearly violate the principles upon which her exclusion is rested. — 1 G-reenleaf on Evidence, (16th ed.) § 336, p. 496.

Section 4345 of the Code by its express language is limited in its application to trials for assaults, assaults and batteries, and affrays, and has no application to trials for offenses of this character.

Affirmed.