Summary
In Burk v. State, 22 Ala. App. 107, 114 So. 71, the charge there before the court was held to be "materially different" from the charge in Jaco.
Summary of this case from Guenther v. StateOpinion
7 Div. 284.
April 19, 1927. Rehearing Denied May 17, 1927.
Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.
Clarence Burk was convicted of assault to rob, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Burk v. State, 216 Ala. 655, 114 So. 72.
Count 1 of the indictment, under which defendant was convicted, is as follows:
"The grand jury of said county charge that, before the finding of this indictment, Virgil Livingston, Clarence Burk, and Hubert Hurley, assaulted Luther Hale, with the felonious intent, by violence to his person, or by putting him in fear of some serious and immediate injury to his person, to rob him."
The following requested charges were refused to defendant:
"(5) The court charges the jury that, if you are not convinced beyond all reasonable doubt that defendant participated in the difficulty in which the state's witness Luther Hale is alleged to have been assaulted, you cannot convict the defendant.
"(6) You are not authorized to consider the guilt or innocence of the other persons named in the indictment in this cause in reaching your conclusions as to the guilt of this defendant. Before you can convict this defendant you must believe beyond all reasonable doubt that he is guilty as charged, and the fact that the other persons may be guilty of an offense under this indictment is not justification for your finding the defendant guilty thereunder.
"(7) The presumption of innocence attends the accused as a matter of evidence itself of sufficient evidentiary weight and force as may create in your mind a reasonable doubt of defendant's guilt and to authorize his acquittal.
"(8) The presumption of innocence attends the accused as a matter of evidence, and is sufficient in itself to authorize the acquittal of defendant, and, to displace this presumption of innocence, the state is required to offer evidence that convinces you beyond all reasonable doubt as to the guilt of defendant."
Hugh Reed, of Center, for appellant.
The intent to rob is the gist of the offense, without which there could be no conviction. Douglass v. State, 21 Ala. App. 289, 107 So. 791; Jones v. State, 90 Ala. 628, 8 So. 383, 24 Am. St. Rep. 850. The intent to rob is a substantial fact, not to be inferred from the mere circumstances of the assault. Walls v. State, 90 Ala. 618, 8 So. 680. The refusal of charges 7 and 8 constituted reversible error. Jaco v. State, 20 Ala. App. 559, 103 So. 917; Haithcock v. State, 21 Ala. App. 367, 108 So. 401.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The error pointed out by demurrer in the first count of the indictment is clerical and by its nature is self-correcting. The demurrer was properly overruled.
Refused charge 5 seeks to confine the inquiry to an actual participation by defendant in the assault made on Luther Hale, pretermitting a consideration of aiding or abetting the crime. The charge is patently erroneous as applied to the facts in this case
Refused charge 6 invades the province of the jury. The evidence tends to prove a conspiracy between the defendant and two others, and everything done and said in furtherance of the common design by either of the parties to the conspiracy is competent evidence against the other and to be considered by the jury in making up their verdict. Lancaster v. State, 21 Ala. App. 140, 106 So. 609.
Refused charge 7 is invasive of the province of the jury, in that it pretermits a consideration of all the evidence, and refused charge 8 gives undue prominence to the presumption of innocence. The presumption of innocence is evidentiary, but it only attends the defendant until such time as the state by the evidence has convinced the jury beyond a reasonable doubt of the defendant's guilt. The charge considered in Jaco v. State, 20 Ala. App. 559, 103 So. 917, is materially different from the charge here.
The objections and exceptions to testimony are without merit.
The question of serious consideration is the action of the court in refusing to grant to the defendant his motion for a new trial. And that presents the question as to whether there is evidence of an intent to rob. Intent can only be shown by facts and circumstances from which the jury is authorized to draw the inference. Jones v. State, 90 Ala. 628, 8 So. 383, 24 Am. St. Rep. 850. In the instant case the assault on Hale was at night, at the isolated house of the assaulted party, where defendant and his two associates had no right and no lawful business. They called Hale from his house to his doorstep and made an unprovoked assault upon him. As a part of the res gestæ defendant told the others to "go in and search the house." The confession of the defendant was that they "went after money." The inference that the assault was made with the intent to rob was justified by the evidence for the state. The denials by the defendant and his witness that they went to Hale's house to rob was for the jury. The court had all the parties before him, heard the evidence, and saw them testify. We will not disturb his judgment.
There is no error in the record and the judgment is affirmed.
Affirmed.