The defendant was indicted, tried, and convicted for the offense of assault with intent to murder, and was sentenced to five years' imprisonment in the penitentiary.
The errors complained of on this appeal relate to the rulings of the court upon the evidence, and the refusal of the court to give several written charges requested by the defendant, and also to grant a new trial.
There was no error in overruling the objection to the testimony of state's witness Hightower relative to the wife of the defendant screaming immediately before the gun fired, as this testimony related clearly to the res gestæ and was therefore admissible; and for like reason the objection to the testimony of Mrs. Hightower as to what took place between her and her husband at the very time of the shooting was also properly overruled.
On cross-examination of state's witness Hightower, he testified that his feelings towards the defendant were perfectly good, yet he had come all the way from Atlanta to attend the trial. It was not error, therefore, for the court to allow this witness, on redirect examination, to state that he had received a summons to attend the trial from the sheriff through the mail. It was clearly apparent that the defendant sought by this examination to show interest and feeling upon his part as against, the defendant, and it was perfectly proper that this witness should be allowed to state the above facts relative to having received the summons to rebut the proposition of undue feelings and interest on his part.
The statements and conduct of the defendant prior to the shooting were of a self-serving character, and the court did not err in not permitting Mrs. Pat Crawley, wife of the defendant, to testify to these facts.
Charges A, B, and D were each properly refused. The indictment charged the defendant with assault with intent to murder, which charge also involves an assault, or an assault with a weapon, etc., misdemeanors comprehended and included in the felony charge, and these refused charges precluded the jury from a consideration of either of these offenses, and there was no error in their refusal.
Charge C was properly refused. This charge was fully covered by the oral charge of the court, and it was also abstract; there being no testimony in the case that the defendant did not know Grover Hightower was in the room at the time he fired the shot.
Charge E was misleading and was properly refused. When applied to a charge of assault with intent to murder, or other offenses of which there are different degrees, a similar charge has been held to be bad repeatedly by this court and by the Supreme Court. Lacey v. State, 13 Ala. App. 212, 242, 68 So. 706; May v. State, 79 So. 677;1 John Null v. State,79 So. 678;2 Littleton v. State, 128 Ala. 31, 29 So. 390; Stoball v. State, 116 Ala. 454, 23 So. 162. Furthermore, the principle of law attempted to be embodied in this charge was fairly and substantially covered by the oral charge of the court.
The action of the court in refusing to grant a new trial is not presented in a manner authorizing a review of the ruling of the court on this question. Acts 1915, p. 722; Ross, v. State, ante, p. 393, 78 So. 309; King v. State, ante, p. 103,75 So. 692; Henry, alias Booze O'Neal, v. State, ante, p. 484,79 So. 158; Powell v. Folmar, 201 Ala. 271, 78 So. 48.
The record is without error, and there is no error of a prejudicial nature in any of the rulings of the court. The judgment of conviction is therefore affirmed.
Affirmed.
1 Ante, p. 541.
2 Ante, p. 542.