7 Div. 365.
March 20, 1928.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
William Duncan was convicted of assault with intent to murder, and he appeals. Reversed and remanded.
A witness for the state identified the shirt with blood on it, worn by the injured party at the time of the difficulty, and testified that a cut appearing in the shirt was made with the knife at that time. He further testified that he saw the boy's (the injured party's) foot soon after the difficulty; that he did not know exactly the condition of his foot; that there was some blood there, and he could not tell much about the bullet hole except by the blood; that there was a hole in his foot, and it was bleeding, and this was immediately after the fight; that the point where the hole in the sock was there was a hole in his foot. Thereupon, over defendant's objection, the state introduced in evidence the shirt and sock.
The witness Hill testified that he saw the assaulted party and another coming from town, and, over defendant's objection, was permitted to testify that defendant whistled to them. Further he testified that the injured pary was in the act of going over the fence into witness' yard when defendant fired the shot, and was asked: "What did you tell Duncan?" Over objection, the witness was allowed to answer: "I told him not to shoot on my porch."
Longshore Longshore, of Gadsden, for appellant.
The introduction in evidence of the bloody clothing of the injured party constituted reversible error. Boyette v. State, 215 Ala. 472, 110 So. 812. The case of Hyche v. State, ante, p. 176, 113 So. 644, does not apply to this case, where the injured person was alive and present in court and exhibited his injuries to the jury. Testimony as to defendant's sticking his knife under the noses of the crowd was no part of the res gestæ.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Appellant was convicted of the offense of assault with intent to murder. It was alleged that he cut and shot one Marion White; the wounds inflicted being on White's side or back and in his foot.
The testimony on behalf of the state tended to show that appellant assaulted the injured party without provocation. That on behalf of appellant tended to the effect that the injured party was himself the aggressor. In this state of the case we think it was prejudicial error for the court to allow, over defendant's objection, the witness Gaylor to state that defendant "stuck his knife under several fellows' noses and told them to smell it." The objections to the questions calling for this testimony pointed out the fact that they were not predicated on the time of the difficulty, or any time so related thereto that the testimony called for could be said to be of things or matters of the res gestæ thereof. Without so predicating the testimony, it clearly appears that the evidence called for was immaterial and irrelevant. Madry v. State, 201 Ala. 512, 78 So. 866. And its admission no doubt tended to discredit with the jury appellant's story of the encounter.
The opinion in the recent case of Hyche v. State, 113 So. 644, decided by this court, demonstrates that there was no error in allowing the state to introduce in evidence, in this case, the clothing worn by the injured party at the time of the difficulty with appellant.
Ante, p. 176.
The testimony of the witness H. B. Hill, admitted over appellant's objection, was, we hold, of matters and things composing the res gestæ of the fight between appellant and the injured party, White, and no error appears in admitting same.
The other exceptions reserved have each been examined, but in each instance they appear without merit.
For the error pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.