(79 South. 804)

#### CRAWLEY v. STATE.

(7 Div. 540.)

(Court of Appeals of Alabama.

June 11, 1918.

Rehearing Denied Oct. 8, 1918.)

1. Criminal Law @=>368(2) — Evidence—Res Gest.®.

In prosecution for assault with intent to murder, evidence relative to defendant’s wife’s screaming immediately before gun was fired *held*admissible as part of res gestse.

2. Criminal Law @=>368(1) — Evidence—Res Gestíe.

In prosecution for assault with intent to murder, testimony by the wife of prosecuting witness relating what took place between her and her husband at the time of the shooting was admissible as part of res gestee.

3. Witnesses @=>376 — Testimony on Redirect Examination — Interest oe Witnesses.

Where state witness testified on cross-examination that his feelings toward defendant were good and that be had come all the way from another state to testify, it was proper for witness, on redirect examination, to testify that be had been subpoenaed; such evidence being admissible to rebut the proposition of undue feelings and interest against defendant on his part.

4. Criminal Law @=>417(10) — Evidence— Self-Serving Declarations.

In prosecution for assault with intent to murder, testimony by defendant’s wife as to defendant’s conduct and statements prior to the shooting was inadmissible, being self-serving.

5. Criminal Law @=>815(13) — Instructions Excluding Issues.

In prosecution for assault with intent to murder, instructions which would have precluded a consideration by jury of an assault, or an assault with a weapon, misdemeanors comprehended and included in the felony charge, were properly refused.

6. Criminal Law @=>829(1) — Instructions Covered by Charge.

An instruction fully covered by the oral charge was properly refused.

7. Criminal Law @=>814(8, 9) — Abstract — Instruction.

In prosecution for assault with intent to murder, defendant’s instruction that jury could not convict if it found that defendant did not know prosecuting witness was in the room when the shot was fired was properly refused as abstract, where there was no evidence that defendant did not have such knowledge.

8. Criminal Law @=>798(1) — Misleading Instruction — Reasonable Doubt.

In prosecution for assault with intent to murder, instruction that burden is upon state to satisfy each juror beyond all reasonable doubt that each and every material allegation is true held1 misleading.

9. Criminal Law @=>1066, 1124(4) — Appeal — Record — Bill of Exceptions — New Trial.

Under Acts 1915, p. 722, court’s refusal to grant new trial will not be reviewed, where no exception to court’s ruling was taken, and bill of exceptions does not contain the motion, the order thereon, or the evidence taken in support of the motion.

Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.

Pat Crawley, alias, was convicted of assault with intent to murder, and be appeals.

Affirmed.

Tbe evidence tended to show that, in tbe absence of defendant, Grover Higbtower bad certain goods of defendant attached for rent, and that upon tbe return of defendant be came into tbe bouse and walked through tbe house. The other witness stated that he heard the wife of defendant scream, and that she broke and ran into the back yard, and continued to scream and halloo out there: and that immediately defendant came td’the room where witness was and lunged against the door, and, on witness starting to open tbe door,. defendant fired, tbe shot breaking a bole in the door, and a splinter striking witness. Witness stated that be-bad no feeling against defendant, and it was shown that at the time of tbe trial witness was living in Atlanta, Ga., but bad come all tbe way to Gadsden to attend tbe trial whereupon the solicitor asked him how be came to know that tbe case was set down for that day, and witness replied that he bad a summons to appear that day, together with a letter from tbe sheriff asking him to come. Mrs. Higbtower, wife of prosecutor, was permitted to testify that, after defendant bad rapped on tbe door and said that be wanted cover, she ran to her husband and said, “You are not going to open tbe door,” and be just said, “Ob,” like that, and reached for tbe knob. Tbe wife of defendant testified that defendant was out all day and came home about half an hour before the trouble; that he had been drinking all day, and that when he came in he told her that he was going to see what— Here objection was interposed, and counsel stated;

“We offered to show that just immediately before tbe shooting this man came in intoxicated and said: ‘I’m going to go to Higbtower and tell him I want to get part of that furniture.’ AVhereupon defendant’s wife said to him: ‘Hightower has got a gun; he has got a pistol, and don’t you go.’ And defendant picked up his gun and said, ‘I’m going,’ and he went.”

The following charges were refused to defendant:

A. Tbe court charges the jury that they must each believe beyond every reasonable doubt that defendant is guilty as charged; otherwise, they must acquit him.

■B. In order to convict defendant, you must believe under the evidence beyond all reasonable doubt that, at the time the shot was fired, the defendant intended to kill Grover High-tower.

G. If you find that at the time the shot was fired defendant did not know Grover Hightower was in the room, then you cannot convict him.

D. Before you can convict defendant, you must believe beyond all reasonable doubt that defendant assaulted Grover Hightower with the intent unlawfully and maliciously to kill him.

E. The burden is cast upon the state to satisfy each and every member of the jury beyond all reasonable doubt that each and every material allegation contained in the indictment is true, and, failing to do so, they cannot convict defendant.

Tbe record contains a motion for a new trial, and the order on the motion; but the same is not set out in tbe bill of exceptions, *546nor does the record contain any account of an exception being taken to the action of the court in overruling the motion.

Thomas J. Judge, of Birmingham, and L. B. Rainey, of Gadsden, for appellant. P. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen., for the State.

BRIOKEN, J.

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..

[1,2] There was no error in overruling the objection to the testimony of state’s witness I-Iightower relative to the wife of the defendant screaming immediately before the gun fired, as this testimony related clearly to the res gestse 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.

[3] 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 ánd 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.

[4] 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.

[5] 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.

[6, 7] Charge G 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.

[8] 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 had repeatedly by this court and by the Supreme Court. Lacey v. State, 13 Ala. App. 212, 242, 68 South. 706; May v. State, 79 South. 677;1 John Null v. State, 79 South. 678; 2 Littleton v. State, 128 Ala. 31, 29 South. 390; Stoball v. State, 116 Ala. 454, 23 South. 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.

[9] 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 South. 309; King v. State, ante, p. 103, 75 South. 692; Henry, alias Booze O’Neal, v. State, ante, p. 484, 79 South. 158; Powell v. Folmar, 201 Ala. 271, 78 South. 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.