Phillips v. State

SAYRE, J.

Defendant was convicted of assault upon one Melton with the intent to murder him. The surgeon who- attended upon Melton after his injury testified to the nature and extent of his wound and to the course of the treatment, for it. The bill of exceptions recites that the defendant objected to parts of this testimony; but as to a number of the objections it is clearly inferable that they were not interposed to the questions which elicited the testimony in advance of the answers, nor does it appear that defendant had not abundant opportunity to object before the questions were answered. These objections, if meritorious, came too late. This will serve to dispose of several of the exceptions noted in the record.

*64 Over well-timed objections this witness was allowed to testify that it took the wound six months to heal; that it left Melton without the soft part of the nose, upper lip, righ part of the jaw, palate, and part of the temple bone; that he could not talk distinctly, and could not eat anything solid; that his head had to he thrown back and food injected into his mouth. The grounds of objection were that the evidence was irrelevant, immaterial, and calculated to arouse the prejudices of the jury. The testimony as to the nature and extent of the wound was admissible to show the intent of the accused. It afforded reasonable inferences as to the mechanism of the assault, the fierceness of the attack, and these things were of the res gestae of the offense charged. — 21 Cyc. 897, 945. For like reason the testimony of several witnesses to the effect, to state it generally, that shortly after the shooting they saw blood on the ground, and blood and particles of flesh spattered upon the fence, and shot marks on the gatepost within three or four feet of which Melton was at the moment of the shooting, was properly admitted.

Over similar and well-timed objections the court allowed the surgeon to testify that he had taken Melton to Atlanta, G-a., for treatment. The fact here testified to had no tendency to prove any circumstance of the shooting. The character of Melton’s wound was a relevant fact, and perfectly well demonstrated by undisputed testimony. Possibly the conduct of the surgeon in taking him to Atlanta afforded some ground for the inference that he considered the wound so serious as to require treatment in Atlanta. But as evidence it stood upon no better footing than would a verbal declaration, made at the same point of time and to the same effect. If the declaration by conduct tended, in any degree to show the character of Melton’s wound, it was speculative and remote. It does not appear that *65 in the circumstances under which it was made there was any guaranty of trustworthiness, or any element of spontaneity. It did not spring' naturally and immediately from the infliction of the wound. On the other hand, it had a tendency to excite sympathy for Melton and prejudice against the defendant, and was likely to be misused and overestimated by the jury. The ruling was reversible error.

On the cross-examination of the defendant the state asked him: “How much did you owe Ed. Faircloth for advances to make the crop during the year?” After an objection had been overruled, the defendant answered: “Seventy-six dollars.” In rebuttal, defendant was asked: “Have you not since the shooting settled with Faircloth?” The state’s objection was sustained. The difficulty between defendant and Melton appeal’s to have had its origin in an altercation between defendant and Faircloth — who was Melton’s son-in-law, and had been farming on shares with defendant — about the ownership of cotton raised by them and the state of the account between them. Melton had taken some part in the controversy. It was permissible for the state to ask the question on cross-examination for the purpose of showing bad feeling; but good practice required that the witness be first asked the state of his feeling for Melton. The defendant’s question in rebuttal was properly overruled. His settlement of the account subsequent to the shooting could have no tendency to show the state of his mind previously thereto. The questions asked by the state of Mrs. Faircloth and Mrs. Melton tended to draw out the fact that defendant, at an earlier hour of the day, had gone to Faircloth’s house and engaged in an altercation with Melton, and so to show malice.

The shooting occurred in Faircloth’s lot adjacent to his dwelling. Cotton grown by defendant and Faircloth *66 on shares during the year was stored in a crib in the lot. Mrs. Faircloth owned the land, upon which the cotton had been grown. As already noted, there had been an angry dispute about the ownership of the cotton, and the state’s case, supported by the tendencies of the evidence was that defendant had gone to the lot, armed with a shotgun, to take away the cotton, and to take it in any event. Faircloth was absent, and Melton was there looking after the interests of his daughter and son-in-law. The defendant requested a number of charges, which were refused by the court. The charge which asserted that “a man has a right to arm himself for his protection” was abstractly correct; but it was misleading, because, in its application to the case on trial, it ignored that phase of the evidence which tended to show that defendant had armed himself for the purpose of taking the cotton in dispute in any event. His rights in the cotton were in dispute, and, whatever they were, he was not to be justified in asserting, or preparing to assert, them by an assault greatly dangerous to life or limb. This consideration disposes also of charges 4, 5, and 9.

Charges 1 and 13 were properly refused, for that the one required an acquittal on proof of good character, and the other authorized an acquittal on consideration of the evidence going to show good character alone.

Charges 2, 3, 11, 15, 18, 20, 21, and 23 were framed upon the idea that defendant had a right to go into the lot to enforce his claim to the cotton, or that he was under no duty to retreat because the lot was either his place of business or within the curtilage of his dwelling house. His right to- go into the lot depended upon the manner of its exercise, and the state’s evidence as to that is neglected. As for the rest, there was no evidence that the lot was either defendant’s place of business, or within the curtilage of his dwelling house, and *67 so the charges relieving the defendant of the duty to retreat on that account were abstract.

Other charges assert that defendant and Faircloth were tenants in common of the cotton, while still others assert that they were not. Whether one status or the other existed, defendant had no right to assert his claim in the manner shown by the state’s evidence, and this the charges ignored.

For the error pointed out, the judgment must be reversed, and the cause remanded.

Beversed and remanded.

Dowdell, C. J., and Anderson and Mayfield, JJ., concur.