Kelly v. State

Alabama Court of Appeals

Kelly v. State

72 So. 573, 15 Ala. App. 63, 1916 Ala. App. LEXIS 104

CourtAlabama Court of Appeals

DecidedAugust 1, 1916

StatusPublished

Cited by3 cases

This text of 72 So. 573 (Kelly 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

Kelly v. State, 72 So. 573, 15 Ala. App. 63, 1916 Ala. App. LEXIS 104 (Ala. Ct. App. 1916).

Pincite

Opinion

*64 BROWN, J. —

The appéllant was tried under an indictment charging the offense of assault with intent to murder, and was convicted of an .assault with a weapon. His contention here is that the evidence adduced by the state shows without room for adverse inference that the shot was fired to scare the prosecutor, Eugene Roberts, and without any intention of doing him corporal hurt — otherwise stated, that he did not shoot at him, but shot into the air at a time when the prosecutor was not within range on account of an intervening building. The undisputed evidence shows, if the shot was fired at Roberts at all, it passed over him. As we read the record, the evidence of the state tends to show that before the occurrence on which this prosecution is predicated, the defendant threatened to kill the prosecutor, and the witness Flournoy testified that while he was standing talking to the defendant and his companions, the prosecutor came in sight, and the defendant said, “Who’s that yonder?” and he said, “I don’t know.” Defendant said, “I am going to shoot at him.” Witness said, “Don’t shoot;” and when he shot he jumped up’ and run. He shot with a pistol.

(1, 2) In view of the tendencies of the evidence, the case was for the jury, and charges 1, 2, 8, and 4 were well refused. Charge 6 wás properly refused. Deliberation and premeditation are not essential elements of the offense' of an assault with intent to murder. — Welch v. State, 124 Ala. 41, 27 South. 307.

(3) The court erred in refusing charges 10 and 11, requested by the defendant. — Reynolds v. State, 196 Ala. 586, 72 South. 20; McClellan v. State, 117 Ala. 140, 23 South. 653; Parham v. State, 147 Ala. 57, 42 South. 1; Ala. Steel & Wire Co. v. Griffin, 149 Ala. 423, 42 South. 1034.

For the errors pointed out, let the judgment be reversed, and the cause remanded.

Reversed and remanded.

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*64 BROWN, J. —

The appéllant was tried under an indictment charging the offense of assault with intent to murder, and was convicted of an .assault with a weapon. His contention here is that the evidence adduced by the state shows without room for adverse inference that the shot was fired to scare the prosecutor, Eugene Roberts, and without any intention of doing him corporal hurt — otherwise stated, that he did not shoot at him, but shot into the air at a time when the prosecutor was not within range on account of an intervening building. The undisputed evidence shows, if the shot was fired at Roberts at all, it passed over him. As we read the record, the evidence of the state tends to show that before the occurrence on which this prosecution is predicated, the defendant threatened to kill the prosecutor, and the witness Flournoy testified that while he was standing talking to the defendant and his companions, the prosecutor came in sight, and the defendant said, “Who’s that yonder?” and he said, “I don’t know.” Defendant said, “I am going to shoot at him.” Witness said, “Don’t shoot;” and when he shot he jumped up’ and run. He shot with a pistol.

(1, 2) In view of the tendencies of the evidence, the case was for the jury, and charges 1, 2, 8, and 4 were well refused. Charge 6 wás properly refused. Deliberation and premeditation are not essential elements of the offense' of an assault with intent to murder. — Welch v. State, 124 Ala. 41, 27 South. 307.

(3) The court erred in refusing charges 10 and 11, requested by the defendant. — Reynolds v. State, 196 Ala. 586, 72 South. 20; McClellan v. State, 117 Ala. 140, 23 South. 653; Parham v. State, 147 Ala. 57, 42 South. 1; Ala. Steel & Wire Co. v. Griffin, 149 Ala. 423, 42 South. 1034.

For the errors pointed out, let the judgment be reversed, and the cause remanded.

Reversed and remanded.

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Bluebook (online)

72 So. 573, 15 Ala. App. 63, 1916 Ala. App. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-alactapp-1916.

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