Opinion
6 Div. 635.
January 19, 1926. Rehearing Denied May 25, 1926.
Appeal from Circuit Court, Marion County; R. L. Blanton, Judge.
Will Holladay was convicted of assault with intent to murder, and he appeals. Affirmed.
Gray Powell, of Jasper, for appellant.
Brief of counsel on original hearing did not reach the reporter.
Harwell G. Davis, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty. Gen., for the State.
The discretion of the court was not abused in denying a continuance. Riley v. State, 209 Ala. 505, 96 So. 599; Stover v. State, 204 Ala. 311, 85 So. 393; Walker v. State, 17 Ala. App. 3, 81 So. 179. When taken with the whole of the charge excerpts from the oral charge of the court are without error. Williams v. State, 83 Ala. 68, 3 So. 743; Johnson v. State, 81 Ala. 54, 1 So. 573; Cowart v. State, 201 Ala. 525, 78 So. 879.
The party assaulted was a qualified member of the panel of jurors serving for the week of the court during which this defendant was tried. The point is made in various ways that the defendant's case should not be tried before the jurors impaneled with the prosecutor. All motions of defendant based upon that fact were overruled. There is nothing to show that defendant's case was prejudiced by being tried before a jury selected from the jurors serving for the week. The matter of a continuance was within the sound discretion of the court, not to be revised on appeal except in cases of abuse. Riley v. State, 209 Ala. 505, 96 So. 599.
The excerpts from the court's general charge to which exceptions were taken when considered with the entire charge are without error.
All of that testimony as to what took place at the time and place of the shooting and relating to the difficulty was relevant as being a part of the res gestæ. This applies to the drawing of the pistol by defendant from a place of concealment, the number of shots fired, and the direction in which the pistol was pointed when fired.
The defendant appears to have had a fair trial, free from errors, and the judgment is affirmed.
Affirmed.