146 So. 826 | Ala. | 1933
Evidence of opprobrious words or abusive language used by the person assaulted or beaten at or near the time of the assault are not admissible in mitigation or justification on the trial under an indictment for an assault with intent to murder, under the provisions of section 3302 of the Code of 1923. This statute applies only where the indictment is for an assault, assault and battery, or affray. Taylor v. State,
Whether the indictment be for a misdemeanor or a felony, independent of this statute, evidence of statements and declarations of the parties, whether they are opprobrious words or abusive language, or not, used by the parties at the time of the commission of the alleged offense, and of the res gestæ of the main fact, is admissible in connection with evidence going to show self-defense, as giving character to and illustrating the acts of the parties. Nelson v. State,
Under the last-stated rule, what was said and done by the parties in respect to the paper and its contents, immediately before the assault, was clearly admissible, and under the circumstances stated in the opinion of the Court of Appeals, it was defendant's right to have the editorial referred to admitted in evidence, whether it was of the res gestæ or not. In Gafford v. State,
While we do not concur in the opinion of the Court of Appeals in the instant case, and regard the holding in Mancil v. State,
Writ denied.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur. *329