Morris Jones, Luther Jones, and R. D. Jones, were jointly indicted for the offense of assault with intent to murder, in that they, with malice aforethought and with intent to kill, did, on July 1, 1944, assault one Timothy Gibson with "a knife, dirk, razor, and a piece of lumber, wooden stick and bludgeon, and other sharp and blunt instruments likely to produce death." All of these defendants were tried together and convicted, and filed separate motions for new trial which were overruled, and they excepted. Held: The motions for a new trial contain only the general grounds. The records disclose that the evidence for the State, if credible, was sufficient to support the verdicts against each of the defendants. The jury being the judges of the weight of the evidence, this court can not disturb the judgments refusing a new trial.
Judgment affirmed. Broyles, C. J., and Gardner, J.,concur.
DECIDED OCTOBER 12, 1945. STATEMENT OF FACTS BY MacINTYRE, J. The briefs of evidence in all three cases are exactly the same. Timothy Gibson, the person assaulted, testified in effect as follows: That he had gone to a ball game and, after the game, had stopped at a barbecue stand in the ball park to get a sandwich; that he was standing by a truck parked in front of the barbecue place eating his sandwich, when some one of a group of men standing nearby began cursing; that the proprietor, Nathan Raines, requested them to be quiet and to stop the cursing; "I [Gibson] spoke up and said: `Who is doing that cursing?' and somebody spoke up and said, `Man [Morris] Jones,' and he said, `Who in hell wants to know?' I said, `Nobody, go on, boy, I am an old man and you are a boy — I am older than you.' He said, `Why do you want to know?' I told him, `Nothing in particular.' He said: `Old man, I want to let you know you don't run this place.' I said: `Boy, you go ahead on cause you ain't anything but a *Page 33 boy and I don't fool with children.' He hit me the first time, just touched my head. . . I say he hit me in the head, and I turned around and he hit me in the back of the head. I couldn't say what it was he hit me with, I know it was a piece of wood of some kind. . . I was trying to keep him from hitting me and holding him and he fell backwards. He and I fell down, he fell down and I just went right down on him. . . While he and I were struggling and I was trying to get the stick, Luther [Jones] and R. D. [Jones] they run on behind me with knives and went to cutting on me — they were all on me. They cut me right here on my shoulder and all over my back. . . After this darkey got separated from me, after I got one of them off and the other boys got the other two, I got beat up some more — one lick right there, that one in the top of my head. Morris Jones did that after I had been separated from them." Nathan Raines testified for the State, in effect, as follows: "I know Morris Jones when I see him. I know the two brothers over there, Luther [Jones] and R. D. [Jones]. I know Timothy Gibson. On Saturday night, July 1, of this year I saw Morris Jones up at my barbecue place. I had some talk with him. . . I was over at the table, and they was out about the distance of that door I reckon from me, and I heard some unusual loud talking and cursing, and I walked out there and I asked some of the boys who was that cursing, and somebody said it was Morris Jones, and I walked over and I told them, I said, `Boys, you all be quiet, don't do like that, let's have a good nice time,' so I turned around and went on back. The next thing that I heard was I saw them running around, standing around the truck, . . a few minutes later Gibson walked up to the table where I was at. Blood was all over his head and back and two or three holes was in his shirt behind, and [Morris] Jones come up then with a little short stick about two and half or three feet long and rapped him [Gibson] across the head two or three times at the table. The stick . . was about one and a quarter inches thick . . a green pipe strip . . maybe two and half or three feet long. He broke the stick when he hit him, he broke the stick all to pieces over his head." Another witness testified for the State, in effect: "I was there the night that there was some trouble between Gibson and these Jones boys. I was there when it started. Myself and Edgar Feagin and Gibson *Page 34 was standing there in front of the truck talking, and this Jones boy was at a distance, not very far, Morris Jones, . . and he was cursing. . . Gibson said: `Who was that cursing?' Gibson wasn't doing anything, he was eating a sandwich." When Gibson asked who was that "cursing," Morris Jones began cursing and then "commenced walking toward Gibson shaking his finger at Gibson . . and I told them not to fight at my place, and about that time he [Morris Jones] hit Gibson. As to whether Gibson had any weapon at all — no sir, I didn't see any at all. . . He hit him with a stick; the stick was a strip of lumber, about an inch and quarter strip of lumber. It was about an inch and quarter thick, sort of a square strip. It seemed to be about three or four feet long. He hit Gibson across the head, then Gibson ran into him. He just run and pushed him over like and Gibson fell on him. Gibson was holding the stick with his hands. Then Gibson ran in from the truck and fell and all of them got on Gibson, them three Jones boys . . these Jones boys were over him, I mean those other two. Gibson and Morris fell, and then these other two covered Gibson. . . Gibson jerked loose from them and started away and got up in front of the truck and he fell. When he fell in front of the truck, they covered him, all three of them. Cleve Raines pulled Gibson out of the crowd; seemed like to me they were cutting him or beating him. . . When Cleve got these Jones boys off of Timothy [Gibson] and said `Don't a one of you come out here,' one of the boys come there and hit him right there while he was showing us how he was bunged up. . . He was bleeding in the back like a hog. He had licks all over the head in this part. While he was showing us how they beat him, one of the boys come up and hit him across the head again, the one they call `Man' [Morris] Jones. He hit him with a strip, another one, he broke it. He had him another one, he broke it all to pieces over his head. He hit him twice after the cutting was over."
The sheriff testified, for the State in part, as follows: "I saw Boisy [Timothy] Gibson [the next morning after the alleged assault]. I know Boisy. He was all cut up, he was cut in his back, stabbed a place or two on his legs, on the back of his legs, and two gashes I believe on the back of his head and this bad gash across here, back of his head. I see the places by marks up on his head *Page 35 now. I know he was detained a good while with one of those wounds. I saw Boisy's wound after I got some information from Dr. Adams. His head was swelled and his eyes closed. That was along about the middle of the week after the event on Saturday, July 1st. That was about the middle of the next week. . . Boisy was off from work something like three or four weeks, the doctor notified me about the fourth or fifth day that Boisy was out of danger. That is when I released these boys on bond. The doctor notified me, sent me this message, and I confined them; as soon as he notified me that he was out of danger, I released them on bond. I saw that shirt and pair of pants that you had in here this morning, I got them from Boisy, that is the clothes that he had on. I got them that Sunday up there, the next day after the thing happened. I got them at Boisy's house."
In short, the jury were authorized to find that Morris Jones unjustifiably struck the prosecutor, Gibson, with a stick or a piece of lumber about two inches and three or four feet long; that, while Morris Jones and Gibson, the prosecutor, were struggling for the piece of lumber, or stick, Luther Jones and R. D. Jones, cousins of Morris Jones, ran up behind the prosecutor and began cutting him with knives; that the prosecutor jerked away from them and ran and fell, when all three of the said Jones boys "covered him;" that "all three of them were cutting and beating him;" that Cleve Raines got the three Jones boys off of the prosecutor and took him away from the immediate scene of the beating and cutting; that "he was bleeding in the back like a hog;" that he also had "licks" on the other part of the head and body; that, while on this occasion he was showing others how the Jones boys had "beaten and cut him up," Morris Jones renewed his attack on the prosecutor with another stick, which some of the witnesses described as "edging, two inches square and three or four feet long;" that on this occasion Morris Jones hit the prosecutor twice on the head with the strip hard enough to break the stick into several pieces; and that the scars from the cuts and beating were exhibited to the jury.
Each of the defendants made a statement to the jury denying their guilt, and put up witnesses who corroborated in part such statements. Some of the defendants also introduced character witnesses, thus putting their character in evidence. There was *Page 36 some rebuttal evidence by the State on the subject of character. The jury rejected the defendant' statement and the evidence introduced by them, believed the State's theory, and convicted the three defendants of an assault with intent to murder, which they were authorized by the evidence to do.