Engelhardt v. State

SOMERVILLE, J. 1. The court, in our opinion, committed no error in charging the jury that, if they believed the evidence, the defendant was guilty of an assault, or assault and battery. There was undoubtedly an attempt, or offer, on the defendant’s part, with force and violence, to do a corporal hurt to the prosecutor — an attempt manifested both by aiming and firing a loaded pistol in the direction of his person, and by raising a stick, within striking distance, as if to strike him, which was prevented by his wrenching the stick from the defendant’s hand. This was clearly an assault, constituting, as it did, one or more acts, either of which, if [103] consummated, would have resulted in a battery. — Chapman v. State, 78 Ala. 463; 56 Amer. Rep. 42. 2. The evidence, moreover, shows a battery, which is, “the unlawful application of violence to the person of another.” — May’s Crim. Law, § 55; Com. v. McKie, 61 Amer. Dec. 410. “A battery is not necessarily a forcible striking with the hand, or stick, or the like, but includes every touching or laying hold (however trifling) of another’s person, or his clothes, in an angry, revengeful, rude, insolent, or hostile manner.” — 1 Amer. & Eng. Encyc. Law, 783. There is no conflict in that part of the evidence showing the circumstances attending the difficulty. To prevent being shot by the pistol, the prosecutor, Yandiver, seized the defendant’s right hand, which contained the weapon, forcing its discharge in the air. The use of the stick was interrupted in like manner by its seizure. The combatants “clinched” and “struggled together,” the defendant either falling in the struggle, or being pushed backward to the ground, and firing his pistol a second time in the air. The prosecutor and a bystander thereupon got on the defendant, and held him down. He may or may not have used more force than was necessary to resist the assault by the defendant. This is entirely immaterial; for, had both of the combatants fought willingly together, and neither in self-defense, each would have been guilty of an assault and battery on the other. Com. v. Collberg, 119 Mass. 350; 20 Amer. Rep. 328; Adams v. Wagoner, 33 Ind. 531; 5 Amer. Rep. 230. The language describing the contest necessarily implies a contention, or striving together for the mastery, one of the other — a laying hold of each other’s persons in a rude and hostile manner. This was a battery. It may have been justifiable on the part of the person assailed, and no doubt was. But there is no sort of pretext that the act was justifiable on the part of the defendant. There was no error in the charge on this subject, to which exception was taken. 3. The demurrer to the defendant’s plea of former con.viction was properly sustained. This plea set up the fact of a former conviction before the Becorder’s court of the city of Montgomery, for the same offense of assault and battery. It is based on a provision in the amended charter of the city, approved February 28, 1889 (Acts 1888-9, pp. 513, 526), which declares that: “In all cases where a person is convicted or acquitted before the Becorder, .... of [104] an offense which is a misdemeanor under the laws of the State, such conviction or aquittal shall be a bar to a prosecution of such person for such offense before any State court.” The offense in question was committed in September of the year 1888, and the conviction before the Recorder’s court occurred in the same month and year. This was more than five months before the charter of the city was amended, so as to embrace the above quoted provision, on which the plea is based. That provision manifestly had no retrospective force, but was only prospective in its operation. The settled rule is, that statutes should generally be construed to operate in the future only, unless the legislative intent appears clear from their terms that they are to have a retrospective operation. — Warten v. Matthews, 80 Ala. 429; Cooley’s Const. Lim. (5th Ed.), *370. 4. The voluntary drunkenness of the defendant, although he may have been so intoxicated at the time as to be unconcious of what he was doing, was no excuse for the crime of assault and battery of which he was convicted. The language of Baron Parke, in R. v. Thomas, 7 C. & P. 817 (1837), on this subject, has been commonly approved; where he observed, that “if a man makes himself voluntarily drunk, it is no excuse for any crime that he may commit whilst he is so; for he takes the consequences of his own voluntary act, or most crimes would go unpunished.” There can be no doubt on this point, as said by Mr. Wharton, “ either on principle, policy, or authority.”- — -1 Whart. Cr. Law, § 49. The most that can be claimed in such cases, as we have repeatedly held, is that the fact of excessive drunkenness is sometimes admissible to reduce the grade of the crime, where the question of intent, malice, or premeditation is involved. — Ford v. The State, 71 Ala. 385, and cases cited; Gunter’s Case, 83 Ala. 96; Carter v. State, 87 Ala. 113; Cleveland v. State, 86 Ala. 1; State v. Bullock, 13 Ala. 413; 4 Amer. & Eng. Encyc. Law, 707; Flanigan v. People, 86 N. Y. 554; 40 Amer. Rep. 556, and note pp. 560-570. It can, however, never legally excuse or justify an assault and battery, the condition of the criminal’s mind not being an element of this pai'ticular offense.- — Mooney v. The State, 33 Ala. 419. The first charge requested by the defendant on this subject was misleading and ambiguous in meaning, because of the failure to define the meaning of the phrase “crazy drunk,” and was properly refused. The third charge called for an [105] acquittal of assault and battery, as well as of .tbe assault with intent to murder, on tbe ground of drunkenness, and there was no error in the refusal to give it. The other exceptions are not contended for, nor are they maintainable. The judgment must be affirmed.