49 So. 679 | Ala. | 1909
The conviction was of an assault and battery with a Aveapon. The court erred in disallowing proof, offered by defendant, that the victim of the assault was proceeding against defendant civilly for damages suffered in consequence of it. This testimony was admissible for consideration by the jury in mitigation of fine, if such was to be assessed in this prosecution.— State v. Audrey, 1 Stew. 399; Phillips v. Kelly, 29 Ala. 628, 634, 635.
The court erred in permitting the solicitor to examine the defendant in respect of difficulties he had previously had with named persons. These questions would have been permissible, if addressed to those of defendant’s witnesses, who testified to defendant’s reputation for' peace and quiet, but not so when propounded to defendant. — Andrews v. State, 159 Ala. 14, 48 South 858.
That testimony having reference to defendant’s abilities as a dancer had no possible bearing, on the issues on the trial,- and hence should have been disallowed on de-. fendant’s objection.
Charge 5, refused to defendant, should have been given. Its refusal was error. — Kennedy’s Case, 140 Ala. 1, 8, 37 South. 90.
Charge 15, refused to defendant, was faulty in the use of the word “alone.” — Scott’s Case, 133 Ala. 112, 32 South. 623. Notwithstanding, the court gave, at the instance of defendant, a substantial duplicate of it.
Charge 2, given at the instance of the prosecution, undertaking to define “self-defense,” Avould have been a good instruction, had the defendant been on trial for an unlawful killing or assault with intent to murder; but for such an offense as was here the subject of the indictment the second subdivision of charge 2 Avas inapt, and affected to unwarrantably raise the standard of right of defense by one so indicted.
For the errors above indicated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.