Summary
following Lawton this court struck down a state law requiring dental offices to be owned by dentists on the ground such law was not necessary to further any valid state objective
Summary of this case from Seeley v. StateOpinion
10-04-1905
STATE v. BROWN.
Robert H. Richards, Atty. Gen., and Daniel O. Hastings, Deputy Atty. Gen., for the State. Woodburn Martin, for defendant.
Trial of George Brown, indicted for assault with intent to commit murder. Verdict of guilty of assault only.
Assault with intent to commit murder. At the trial, Columbus Smith, a colored man, the prosecuting witness, testified that about 11 o'clock on the night of September 9, 1905, while on his way to his home in the town of Seaford, as he approached Greenabaum's Grove or Factory, the defendant ran up to him and said, "Give me your money," and that he (the prosecuting witness) replied, "I will not give it to you," and stepped back two or three steps. Continuing, the witness said: "He said, 'If you don't give me your money I will kill you,' and be saw I was going to get away from him, and he pulled his gun [meaning 38 caliber revolver] on me and shot me through my left shoulder, and I was not more than five feet from him when he shot me, and I started to run, and he shot at me three more times. The first bullet hit me. I kept on running until I got home. The doctor was sent for, and he came and probed for the bullet and got it out of my shoulder." The above testimony of the prosecuting witness was corroborated generally by one other eye witness.
Mr. Martin, for defendant, produced as a witness one Theodore Bell, and asked him the following question, embodying the same subject-matter that he had asked the prosecuting witness, Smith, without objection being made on the part of the state, and which Smith had denied, viz.: "Q. Did Columbus Smith say to you in the jail here recently that he did not know who shot him?"
(Objected to by the Attorney General because the ground for contradiction had not been properly laid; neither time nor persons present nor any of the circumstances being embodied in the question put to Smith, nor in the above question which embodied the substance of the question put to Smith.)
GRUBB, J. The usual course, when you attempt to ask a witness whether he made a statement, is for counsel on behalf of the witness to object that the time and place or other circumstances to identify it are not given, and the objection is generally made before the witness is allowed to answer. If that has not been done by counsel on behalf of the witness, to keep out his answer, the question is have not the counsel and the witness waived the asking of those questions, and, if they allow it to go in, whether they are not bound by it by their waiver of an objection which they had a right to make? Have you any precedents where the question has been directly ruled upon?
Mr. Richards; I can produce to your honors untold authority on that point. I have not the same right here in court, but I will engage to bring your honors authority in 10 minutes, in this state and out of the state.
GRUBB, J. The question is whether the ground has not been laid, unless you object to the question. There are a number of questions that are not admissible if you object; but, if you let them go in, the question is whether you are not bound by it.
LORE, C. J. Suppose that the witness does not demand that the time and place be fixed, and the counsel on his side does not insist on it, but permits him to answer the question covering the broad ground that he made such a declaration; you have a right to insist upon it, and the witness has a right to insist that counsel on the other side should designate the time, place, circumstances, and persons present, but if you do not take advantage of your right, if you do not object, do not demand the fixing of the time and place, persons present, and the circumstances, then it is too late to make the objection now.
PENNEWILL, J. A majority of the court hold that, the counsel for the state having failed to object to the form of the question at the time that the answer was made thereto by the prosecuting witness, it is too late now, and overrules the objection. I do not think so, and dissent from the majority opinion of the court.
Argued before LORE, C. J., and GRUBB and PENNEWILL, JJ.
Robert H. Richards, Atty. Gen., and Daniel O. Hastings, Deputy Atty. Gen., for the State. Woodburn Martin, for defendant.
PENNEWILL, J. (charging the jury). George Brown, the prisoner at the bar, is charged in this indictment with having committed, on the 9th day of September last, in Seaford hundred, in this county, an assault upon one Columbus Smith, the prosecuting witness, with intent to murder the said Smith. The charge, as you will observe, embraces not only an assault, which is an attempt by force and violence to do injury to another, with the present ability to carry that into execution, but it embraces also an intent to commit murder.
In order to convict the prisoner at the bar, in manner and form as he stands indicted, it is necessary for the state to satisfy you, beyond a reasonable doubt, that the assault was committed by the prisoner, that it was committed with an intent to murder the person assaulted, and that if the person assaulted had died from the effects of the injuries received thereby, the prisoner would have been guilty of murder, either of the first or the second degree. The intent to commit murder is an essential ingredient of the charge, and it must be proved to your satisfaction, just as any other material fact in the case. It may be proved, however, by direct evidence, such as the declarations of the prisoner made at the time of the shooting, or by circumstantial evidence. It is your duty therefore to consider all the facts proved in the case in order to determine whether such an intent to commit murder existed or not; and in determining whether there was such intent, you should consider the words or threats which may have been made by the prisoner at the time of the shooting, the character of the assault, the kind of weapons used, thedanger of producing death, and the means used to avoid or cause death, and all the acts and conduct of the prisoner with the circumstances attending them, as shown by the evidence.
If, after a careful consideration of all the testimony in the case, you are not satisfied beyond a reasonable doubt that the prisoner committed the assault alleged, your verdict should be not guilty. But if you believe that he did commit the assault, and are not satisfied that it was his Intent to commit murder, your verdict should be not guilty in manner and form as he stands indicted, but guilty of assault only. If, however, you believe and are satisfied that he not only committed the assault alleged, but that it was his intention at the time to murder the person assaulted, your verdict should be guilty in manner and form as he stands indicted.
Verdict: "Not guilty in manner and form as he stands indicted, but guilty of assault only."