# Kelly v. State

> Alabama Court of Appeals · August 1, 1916 · 15 Ala. App. 63

URL: https://www.frixlaw.com/law-library/cases/3246347

## Case

- **Full name:** Kelly v. the State
- **Court:** Alabama Court of Appeals
- **Decided:** August 1, 1916
- **Citations:** 15 Ala. App. 63; 72 So. 573; 1916 Ala. App. LEXIS 104
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Brown
- **Judges:** Brown
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3246347

## Opinion text

*64
BROWN, J. —
The appéllant was tried under an indictment charging the offense of assault with intent to murder, and was convicted of an .assault with a weapon. His contention here is that the evidence adduced by the state shows without room for adverse inference that the shot was fired to scare the prosecutor, Eugene Roberts, and without any intention of doing him corporal hurt — otherwise stated, that he did not shoot at him, but shot into the air at a time when the prosecutor was not within range on account of an intervening building. The undisputed evidence shows, if the shot was fired at Roberts at all, it passed over him. As we read the record, the evidence of the state tends to show that before the occurrence on which this prosecution is predicated, the defendant threatened to kill the prosecutor, and the witness Flournoy testified that while he was standing talking to the defendant and his companions, the prosecutor came in sight, and the defendant said, “Who’s that yonder?” and he said, “I don’t know.” Defendant said, “I am going to shoot at him.” Witness said, “Don’t shoot;” and when he shot he jumped up’ and run. He shot with a pistol.
(1,
2)
In view of the tendencies of the evidence, the case was for the jury, and charges 1, 2, 8, and 4 were well refused. Charge 6 wás properly refused. Deliberation and premeditation are not essential elements of the offense' of an assault with intent to
murder.
— Welch
v. State,
124 Ala. 41 , 27 South. 307 .
(3)
The court erred in refusing charges 10 and 11, requested by the
defendant.
— Reynolds
v. State,
196 Ala. 586 , 72 South. 20 ;
McClellan v. State,
117 Ala. 140 , 23 South. 653 ;
Parham v. State,
147 Ala. 57 , 42 South. 1 ;
Ala. Steel & Wire Co. v. Griffin,
149 Ala. 423 , 42 South. 1034 .
For the errors pointed out, let the judgment be reversed, and the cause remanded.
Reversed and remanded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3246347. Public record. Not legal advice.