115 Ala. 61 | Ala. | 1896
The court, of its own motion, instructed the jury as follows : “Whether or not deceased was a trespasser in attempting to take the mule, would depend upon whether or not Scott had the right to take the mule, and whether or not he, Scott, had given deceased authority to take the mule from defendant, and whether or not deceased was acting under such authority.” The defendant excepted to the giving of this instruction.
The evidence tended to show that the defendant was engaged in operating a machine called a stump-puller. It was operated by means of a lever to which a mule was hitched, the lever being drawn around in a circle by
In view of this evidence it is manifest that the in- . struction above set forth was erroneous. The mule being in' possession of the defendant, who was, at the -time, present insisting upon his right to retain such possession, and forbidding molestation .thereof by the deceased, the deceased had no lawful right to forcibly take possession from the defendant. So that,, it was not a question, necessarily, as to who was legally entitled to possession of the mule at the time. If Scott was entitled to reclaim possession, at that .time, he had his legal remedy. He nor his agent had any right to take the law in his own hands and retake possession of the mule under circumstances calculated to cause a breach of the peace.—Burns v. Campbell, 71 Ala. 271.
There was evidence tending to show that after the 'deceased declared his purpose to take the mule from the defendant, the defendant made to the deceased a profane threat to take his life, or do him great bodily harm. This testimony was sufficient to go to the jury for them to determine whether or not it had, in some- degree, the
There was no question before .the jury, arising upon the trial of the cause, touching the subject of the character of those witnesses of whom no impeachment was attempted. The court was, therefore, under no duty to give the jury instructions on that subject. '
Charge “A” was abstract in some of -its features, and properly refused for that reason. ' •
The court was under no duty to make the statement 'to the jury proposed by charge‘'B.” - ' •
What we have said above, in reference t.o the oral instruction of the court, will point out the inaptness of charge “<0?’ requested' by defendant..
For the error in giving said oral charge the judgment of the circuit court is reversed and the cause remanded.
Reversed and remanded.