
    197 So. 43
    BECK v. STATE.
    4 Div. 143.
    Supreme Court of Alabama.
    April 4, 1940.
    Rehearing Denied June 6, 1940.
    Thos. S. Lawson, Atty. Gen., and Jas. F. Matthews, Asst. Atty. Gen., for the motion.
    W. L. Lee and Alto V. Lee, III, of Dothan, and Borom & Borom, of Ozark, opposed.
   PER CURIAM.

This case was reversed upon the sole ground that the trial court permitted the State to prove that the assaulted “continuously had boils around the wound made by the shot of Wiley Beck’s pistol.” The Court of Appeals held that the guilt of this defendant was properly a question for the jury.

It has often been held in charges of this character, where a murderous intent is involved, that the nature, character and result of the wound is a proper element of evidence in ascertaining the intent of the assault. This evidence as to the physical result of the shot may have been of slight probative force, but, even if slight, was a circumstance to be considered by the jury and was not reversible error. Moreover, the fixation of the punishment was a question for the trial court, which was practically the minimum. Underhill on Criminal Evidence, 4th Ed., Section 596; Wright v. State, 148 Ala. 596, 42 So. 745.

Writ awarded and the judgment of the Court of Appeals is reversed and the cause is remanded to said court for further action in conformity with this opinion.

All the Justices concur.  