DUCK v. STATE, 46 Ala. App. 288 (1970)

241 So.2d 129

Carl DUCK, alias v. STATE.

6 Div. 58.Court of Criminal Appeals of Alabama.
December 15, 1970.

Appeal from the Circuit Court, Jefferson County, Wallace C. Gibson, J.

Doss Gorham, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Robert E. Morrow, Asst. Atty. Gen., for the State.

PRICE, Presiding Judge.

This appellant, Carl Duck, has been adjudged guilty of assault with intent to murder. The alleged assaulted party was Gladys Duck, the wife of appellant.

It is first insisted that the trial court erred in sustaining the state’s demurrer to appellant’s special plea of former jeopardy. The judgment sustaining the demurrer appears in the record but the record does not contain the plea or the demurrer. When not so shown, the court’s ruling is not presented for review. Doss v. State, 27 Ala. App. 35, 165 So. 408; Lyles v. State, 41 Ala. App. 1, 122 So.2d 724.

Gladys Duck testified appellant slung her around the room by her hair; beat her with his fist; knocked her to the floor and kicked and stomped her; that she lost consciousness and he threw water in her face to revive her; after she regained consciousness he choked her. She was taken to the hospital where she remained for a week. The attending physician testified Mrs. Duck had bruises and contusions on the upper arms, chest, back, legs, neck and back of the ear. Photographs showing the bruises were introduced.

The appellant testified both he and his wife had been drinking; that they had a scuffle and he shook her because she was hitting at him. He denied choking her but said he poured water in her face in an effort to revive her so she could go to school to get the children.

The conflict in the testimony presented questions for the determination of the jury and was sufficient to sustain the judgment of conviction. Defendant’s motion for a new trial was properly overruled.

We find no merit in appellant’s contention that since no weapon was used in the assault an intent to murder could not be found from the evidence. Bowen

Page 289

v. State, 32 Ala. App. 357, 26 So.2d 205; Kirkland v. State, 21 Ala. App. 348, 108 So. 262.

The judgment is affirmed.

Affirmed.

ALMON, J., not sitting.