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43 Ala. 354

Tarver v. State

Supreme Court of Alabama

Decided June 15, 1869

Supreme Court of Alabama · decided 1869-06-15

Tried before tbe Hon. J, McCaleb Wiley. At tbe spring term, of tbe circuit court of Barbour county, in the year 1869, tbe appellant was indicted and convicted of an assault with intent to murder one William Russell, and fined four hundred and fifty dollars. It appeared, in evidence on the trial, that tbe assault charged, if committed at all, was for presenting and attempting to shoot said Russell with a pistol, in tbe town of Clayton, in said county, in tbe fall of 1867.

Key passage — most relied on by later courts

““An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.””

quoted by 4 later decisions, including Kelley v. State, 57 Ala. App. 568 - Bennett v. State

Cited in Black's (1910)’s definition of “Assault”

Good law ✅— No negative treatment on recordhow we know

Decided 1869-06-15

How this case has been cited

Cited by 32 later decisions — most recently November 2012 · most notably 49 Ala. App. 359 - Bryant v. State (1972), McGee v. State (1912)

30 state decisions — followed in 10 states

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

PECK, C. J.,

¶1(after stating facts as above.) — 1. It was competent for the State to prove the fact of the previous difficulty, although not necessary, for the purposes stated in this case ; that is, to prove malice on the part of the accused, as an$[ old grudge and threats were admitted by him. But the State should not have been permitted to prove the circumstances of the former difficulty. '

¶2The circumstances of said former difficulty consisted not only of what was said and done by the accused, but also of what was said and done, on the occasion, by the witness.

¶3What the witness, said and did, should not be permitted to injui’e the accused on this trial.

¶4*356It might, and probably would, have misled and prejudiced the jury against the accused. For these reasons, this evidence should not have been permitted to go to the jury. The court should have excluded it from them.

¶52. An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.

¶6To constitute an assault with a gun or pistol, it is necessary that the gun or pistol should be presented at the party charged to be assaulted, within the distance to which the gun or pistol may do execution.

¶7Roscoe on Criminal Evidence, top page 286, says: There must be an actual presenting of the gun or pistol, to make out the assault.

¶8Therefore, in this case, if there was, in fact, no actual presenting of the pistol at the witness, there was, legally, no assault, no offense, and, consequently, should be no conviction.

¶9The charge asked should have been given by the court, and in refusing to give it, the court fell into an error.

¶10The court also erred in admitting evidence of the circumstances of the previous difficulty, and in refusing to charge the jury, that if they believed, from the evidence, that the accused did not present the pistol at the said William M. Russell, they should acquit him. Let the judgment of the court below be reversed, and the cause remanded for a new trial.

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