Opinion
4 Div. 26.
January 13, 1970.
Appeal from the Circuit Court, Houston County, Keener Baxley, J.
J. Earl Smith, Dothan, for appellant.
MacDonald Gallion, Atty. Gen., and Joseph Victor Price, Jr., Asst. Atty. Gen., for the State.
Appeal from conviction of assault with intent to murder. Sentence: four years imprisonment.
There is no dispute as to Smith's assaulting his wife with first, an unbroken bottle and then with a broken one. Her cuts led to scars, some of which she exhibited to the jury. Smith had epilepsy.
The only reviewable ruling adverse to the defense was in sustaining objection as to questions (put to a defense witness on cross) as to the wife's associating with other men.
In Cain v. State, 33 Ala. App. 594, 35 So.2d 574, we find:
"Among these grounds it is asserted that the court erred in sustaining the State's objection to several questions propounded to the prosecutrix on cross examination seeking testimony as to her association with the man Oscar Mason at times prior to this shooting.
"It is only when one acts immediately upon discovery of a spouse in an act of adultery that such acts of infidelity may be shown in defense. An intervening cooling period nullifies, in so far as the law is concerned, the extenuating matter of defense resulting from such discovery. [Citing cases]."
The judgment below is due to be
Affirmed.