Opinion
7 Div. 458.
June 20, 1939. Rehearing Denied October 3, 1939.
Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.
Phatus, alias Phaddus, Spurling was convicted of assault with intent to murder, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Spurling v. State, 238 Ala. 522, 191 So. 921.
Motley Motley, of Gadsden, for appellant.
The questions to witness Guice as to how long he was in the hospital and if he ever got the bullet out of him should not have been allowed, as these matters shed no light on the material inquiry, and were matters calculated to prejudice the jury. Blackburn v. State, 22 Ala. App. 561, 117 So. 614; Boyette v. State, 215 Ala. 472, 110 So. 812. A person attacked in his own house is not required to retreat. Brinkley v. State, 89 Ala. 34, 8 So. 22, 18 Am. St. Rep. 87; Christian v. State, 96 Ala. 89, 11 So. 338.
Thos. S. Lawson, Atty. Gen., and Edwina Mitchell, Asst. Atty. Gen., for the State.
Evidence as to how long injured party was in the hospital was admissible. Ezzell v. State, 13 Ala. App. 156, 68 So. 578; Newman v. State, 160 Ala. 102, 49 So. 786. It was proper to inquire as to whether the bullet was ever gotten out of witness' body as tending to show the extent and severity of the injury. Williams v. State, 20 Ala. App. 257, 101 So. 367; Manley v. State, 16 Ala. App. 475, 79 So. 149; Phillps v. State, 170 Ala. 5, 54 So. 111. The locale of the assault was disputed, and the court properly charged the jury on the doctrine of retreat. The charge in this particular was correct. Higdon v. State, 25 Ala. App. 209, 143 So. 213. A street is not a place as to which the law excuses one from retreating. Brake v. State, 8 Ala. App. 98, 63 So. 11.
The evidence discloses a fight, either in the yard of the defendant or in the public road running by defendant's house, The evidence on this point was in conflict, and the court as a part of his oral charge instructed the jury as follows: "Well, did this defendant, Phatus Spurling, after this difficulty arose or just prior to its arising, did he have an opportunity to retreat without increasing his peril. If he did, gentlemen, and this difficulty occurred in the public road it was his duty to retreat because the law says a man must run if he can by so running not increase his danger or his peril, that is it is his duty to do it before he takes the life of a human being." This when taken and considered with the entire oral charge of the court states a correct proposition of law, whether the word used in stating the duty of the defendant to retreat be "retreat", "run," or "flee," it means the same thing; and if more impressive word could be found it should be used. Higdon v. State, 25 Ala. App. 209, 143 So. 213.
During the examination of Hoyt Guice the Solicitor, over the objections and exceptions of defendant, was allowed to ask the following questions: "Did you ever get the bullet out of you?" "How long were you in the hospital?" These questions called for testimony relevant to the issue, in that the length of time the injured party was in the hospital and the fact that the bullet, fired by defendant, was still in the injured party's body, would tend to illustrate the severity of the attack and the gravity of his injuries. Ezzell v. State, 13 Ala. App. 156, 68 So. 578. Newman v. State, 160 Ala. 102, 49 So. 786.
We find no error of a prejudicial nature in this entire record. The defendant has had a fair trial according to the forms of law.
The judgment is affirmed.
Affirmed.