136 Ala. 76 | Ala. | 1902
The evidence without dispute shows that defendant struck the first blow, and this he did while the prosecutor had his back turned to him. He is, therefore, in no position to invoke the doctrine of self-defense. This being true, the court rightly excluded evidence offered by defendant of previous threats by the prosecutor against him.
There is a dispute as to whether the prosecutor or defendant first made use of opprobrious words or abusive language. If defendant was. the first to make use of such language he cannot invoke the protection of section 4345 of the Code. — Brown v. The State, 74 Ala. 42. On the other hand, if he struck the prosecutor under the influence of passion engendered by insulting language, he not having said or done anything calculated to cause the prosecutor to use such language to him, the jury would be authorized under the statute to justify or extenuate his act in assaulting and beating the prosecutor. Brown's case, supra.
Charges 1, 2, 4 and 5 refused to defendant ignore that phase of the testimony tending to prove that defendant was the first to use insulting language. They proceed upon the idea that if the prosecutor made use of insulting language to the defendant, that he is entitled to the benefit of the statute, notwithstanding the jury may have, under the evidence, found that he (defendant) made use of such language first. Their refusal was, therefore, proper.
The words in charge 11 “unless he brought on the difficulty,” are not equivalent of “free from fault” and, for this reason, if for no other, the charge was properly refused.
The charge given at the request of the solicitor asserted a correct proposition of law and was properly given. — Howell v. State, 79 Ala. 283.
Affirmed.
