Hulen v. State

Alabama Court of Appeals

Hulen v. State

147 So. 450, 25 Ala. App. 401, 1933 Ala. App. LEXIS 67

CourtAlabama Court of Appeals

DecidedApril 4, 1933

Docket8 Div. 691.

StatusPublished

Cited by1 cases

This text of 147 So. 450 (Hulen v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hulen v. State, 147 So. 450, 25 Ala. App. 401, 1933 Ala. App. LEXIS 67 (Ala. Ct. App. 1933).

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Opinion

SAMFORD, Judge.

Two negro women living in adjoining houses engaged in a banter of words and epithets, calling each other names and using language not having a place in decent society. During the exchange neither left her own yard, but defendant got a pistol, pointed it at the prosecutor, and told her if she would get off of her porch she’d shoot her. Im-mediately prosecutor “hit the ground,” put down her broom, and invited defendant to “come on.” Whereupon defendant put down the pistol, turned her back, and slapped her backside with her hand. This ended the'episode, and prosecutor then began this prosecution for an assault. To constitute an assault, there must be the commencement of an act, which, if not prevented, would produce a battery. Lawson v. State, 30 Ala. 14, 15.'

There are conditions where the drawing and presenting of a pistol may constitute an assault. Lawson v. State, supra; State v. Church, 63 N. C. 15. But where, as here, the evidence rebuts any presumption of an intended battery, there should be no conviction for an assault. The motion for a new trial should have been granted.

Reversed and remanded.

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SAMFORD, Judge.

Two negro women living in adjoining houses engaged in a banter of words and epithets, calling each other names and using language not having a place in decent society. During the exchange neither left her own yard, but defendant got a pistol, pointed it at the prosecutor, and told her if she would get off of her porch she’d shoot her. Im-mediately prosecutor “hit the ground,” put down her broom, and invited defendant to “come on.” Whereupon defendant put down the pistol, turned her back, and slapped her backside with her hand. This ended the'episode, and prosecutor then began this prosecution for an assault. To constitute an assault, there must be the commencement of an act, which, if not prevented, would produce a battery. Lawson v. State, 30 Ala. 14, 15.'

There are conditions where the drawing and presenting of a pistol may constitute an assault. Lawson v. State, supra; State v. Church, 63 N. C. 15. But where, as here, the evidence rebuts any presumption of an intended battery, there should be no conviction for an assault. The motion for a new trial should have been granted.

Reversed and remanded.

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147 So. 450, 25 Ala. App. 401, 1933 Ala. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hulen-v-state-alactapp-1933.

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