Opinion
6 Div. 24.
March 28, 1944.
Appeal from Circuit Court, Jefferson County; John C. Morrow, Judge.
Robert Bryant, alias Robert Sparks, was convicted of assault with intent to murder, and he appeals.
Affirmed.
Malcolm L. Wheeler, of Birmingham, for appellant.
Wm. N. McQueen, Acting Atty. Gen., and Geo. C. Hawkins, Asst. Atty. Gen., for the State.
Where there was ample evidence to justify the jury in finding defendant guilty, if such evidence were believed, refusal of motion for new trial is proper. Bodine v. State, 18 Ala. App. 514, 93 So. 264; Smith v. State, 23 Ala. App. 488, 128 So. 358; Glover v. State, 25 Ala. App. 423, 148 So. 160; Ballentine v. State, 28 Ala. App. 450, 186 So. 783; Brown v. State, 240 Ala. 648, 200 So. 637. In prosecution for assault with intent to murder, it is relevant to show extent of wounds as being part of res gestae, and duration of recovery as tending to prove severity of wounds and intent to make such assault. Little v. State, 18 Ala. App. 98, 89 So. 303; Id., 206 Ala. 134, 89 So. 304; Bodine v. State, supra; Jackson v. State, 19 Ala. App. 339, 97 So. 260; Shumate v. State, 19 Ala. App. 340, 97 So. 772; 11 Ala. Dig., Homicide, page 365, § 161; Underhill's Criminal Evidence, 357, § 194. Refusal of charges is not error where they are covered in oral charge or defendant's given charges. Morgan v. State, 28 Ala. App. 150, 180 So. 716; Witt v. State, 27 Ala. App. 409, 174 So. 794; Harris v. State, 241 Ala. 240, 2 So.2d 431.
Robert Bryant shot and seriously wounded Joe Ellis and was convicted of assault with intent to murder. From a sentence of three years' imprisonment in the penitentiary, he presents this appeal.
Cause of the affray seems to have been a former altercation between the two negroes, because Joe had accused Robert of going with his "old lady." There is really not much to be said.
The contention is unsustainable that the trial court should have ordered a new trial because, allegedly, the preponderance of evidence was against the verdict. The evidence was sharply conflictory, that for the State fully sustaining the verdict returned, and that for the defendant tending to support his plea of self defense. To have disturbed the verdict under these conditions would have been unauthorized. Chaney v. State, 29 Ala. App. 225, 194 So. 700; Brown v. State, 30 Ala. App. 5, 200 So. 637, certiorari denied, 240 Ala. 648, 200 So. 640.
Nor can error be rested upon the trial court's action in admitting testimony of the nature and extent of the victim's wounds and the length of time he was confined as a result of such wounds. This evidence was material to the issue of intent to kill (Bodine v. State, 18 Ala. App. 514, 93 So. 264), and has been held relevant as of the res gestae of the offense (Phillips v. State, 161 Ala. 60, 64, 49 So. 794).
Likewise, there was no error in refusing the special written charges requested by defendant. They were either sufficiently covered in the oral and given charges, or were incorrect statements of the applicable law.
Affirmed.