BECK v. STATE, 29 Ala. App. 410 (1940)


BECK v. STATE, 29 Ala. App. 410 (1940)
197 So. 42

BECK v. STATE.

4 Div. 509.Court of Appeals of Alabama.
February 27, 1940.Rehearing Denied March 12, 1940.Affirmed on Mandate June 25, 1940.

Appeal from Circuit Court, Dale County; J. S. Williams, Judge.

N.D. Beck, alias Dolphus Beck, was convicted of assault with intent to murder, and he appeals.

Reversed and remanded.

Certiorari granted and judgment reversed by Supreme Court in Beck v. State (4 Div. 143) 197 So. 43.

W. L. Lee and Alto V. Lee, III, both of Dothan, and Borom
Borom, of Ozark, for appellant.

There was no evidence that the wound from the gun shot caused boils, nor was it shown that the boils were not there previously. Testimony that the injured party had boils around the wound continuously would tend to inflame the minds of the jury as to the severity and the effects of the wound.

Thos. S. Lawson, Atty. Gen., and Jas. F. Matthews, Asst. Atty. Gen., for the State.

The admission of testimony, over objection, that after the shooting the assaulted party was affected with boils around the wound continuously, while possibly not material or pertinent, in absence of evidence as to relation of boils to the wound, was not calculated to prejudice defendant and was innocuous.

RICE, Judge.

Appellant and Wiley Beck were jointly indicted; it being alleged that they “unlawfully and with malice aforethought did assault Ralph Daughtry with the intent to murder him.”

Upon a severance being granted, appellant was tried separately and convicted of the offense of “assault * * * with intent to murder” (Code 1928, Sec. 3303), and his punishment fixed at imprisonment in the penitentiary for an indeterminate term of from two to two and one-half years.

The testimony was in sharp conflict; that on behalf of the State tending to show that Daughtry went to appellant’s place of business to pay an account and objected to some items of the account, whereupon a difficulty ensued in the course of which Wiley Beck, shown to be appellant’s son ? and who, according to appellant’s undisputed testimony, did not have a “real good mind”, was “not a normal boy” ? shot Daughtry through the shoulder with a pistol; that shortly before the shooting appellant struck Daughtry on the head with a piece of iron, andtold his son to shoot him; and that Daughtry was doing nothing to appellant (or Wiley Beck) at the time.

On behalf of appellant the testimony tended to show that Daughtry struck appellant with a closed knife before the shooting, and that appellant did not, until after that, strike Daughtry with the iron; also, that appellant did not tell his son to shoot Daughtry ? in fact, did not even know his son had the gun at the time.

The case was one peculiarly for the jury’s decision on the conflicting testimony.

Obviously, if the State’s testimony was believed ? and the jury’s verdict is proof that it was ? appellant was guilty of some offense charged in the indictment.

The State was allowed to adduce testimony, over appellant’s timely objection ? with due exception reserved ? that Daughtry “continuously” had boils around the wound made by the shot from Wiley Beck’s pistol. We are unable to see the relevancy of this testimony. And, the State’s own testimony being to the effect that the “bullet wound of itself was not serious,” it is easy to see how the jury may have been influenced by this irrelevant testimony as to Daughtry’s “boils” ? a boil being defined by Webster’s New International Dictionary to be “a localized inflammatory swelling of the skin, causedPage 411
by infection at the root of a hair, tending to undergo suppuration with discharge of pus and a small central mass of dead tissue called the core” ? to find appellant guilty of a higher degree of crime than they might have, otherwise.

For the admission of the testimony referred to above, the judgment will be reversed and the cause remanded.

Reversed and remanded.

PER CURIAM.

Affirmed on authority of Beck v. State (Ala. Sup. 4 Div. 143)197 So. 43.