Nolen v. State

228 So. 2d 33, 45 Ala. App. 206, 1969 Ala. Crim. App. LEXIS 207

• Court: Court of Criminal Appeals of Alabama
• Decided: November 11, 1969
• Docket: 5 Div. 8
• Status: Published

Opinions

PRICE, Presiding Judge.

The appellant stands convicted of the offense of assault with intent to murder.

The evidence tends to show that in the early morning hours of January 19, 1969, Officers Bonner and Wood of the Roanoke, Alabama, police department observed a large crowd at a service station. They saw defendant and three other men go into a back room. The officers entered the room and asked the occupants, including defendant, if they were gambling. Defendant replied that they were matching to see who was buying the next drink of whiskey.

The officers left the station and started to the patrol car. The station manager, Bryant Nix, told them he thought defendant had a gun hidden under his sweater. Bonner and Wood went back into the station and told defendant he was under arrest. Defendant refused to go with them. Officer Wood reached to take defendant’s arm and defendant swung at Wood, who ducked, and hit Mr. Nix in the face. Defendant then pulled a twelve gauge sawed-off shot gun from under his sweater and pointed it at the officers. When Officer Bonner started to draw his gun defendant pointed the gun directly at him and told Bonner not to draw his gun. He cursed the officers and said he had served time in the penitentiary and the only way they would get him back there would be for killing someone. Defendant told Mr. Spears to bring the car to the door and defendant kept his gun pointed at the officers until he left in the car.

Defendant testified the gun was not loaded at the time he pointed it at the officers. . The .officers testified they did not know whether the gun was loaded.

The following charge, requested in writing, was refused to defendant:

“1. I charge you, members of the jury, that if you believe the evidence in this case you cannot find the defendant guilty of assault with intent to murder.”

In Marshall v. State, 21 Ala.App. 500, 109 So. 558, the court held the refusal of the above charge reversible error where the evidence was undisputed that the gun was empty and such fact was known to defendant.

In Marshall v. State, supra, the court quoted from cases decided by our Supreme Court that:

“There can be no criminal assault without a present intention, as well as present ability, of using some violence against the person of another,” and,

“Presenting and aiming an unloaded gun at a person within shooting distance, in such manner as to terrify him, he not knowing that the gun is not loaded, will not support a conviction for a criminal assault, although it may support a civil action for damages.”

Under the evidence presented the defendant was entitled to the charge requested, and its refusal was error.

Reversed and remanded.