94 So. 546 | Ala. | 1922
Former appeals are reported in
The bill of exceptions shows that the buggy in which deceased was shot, bearing marking thereon indicating the angle whence the shots came, by permission of trial court was viewed by the jury. We cannot say that the same is described in the bill of exceptions in exact manner and to a like effect as did its inspection impress the jury; hence the refusing of special charges requested by defendant in writing will not be reviewed. Alabama Power Co. v. Fergusen,
Self-defense or justification in a civil suit is a matter to be presented by a special plea and not by the general issue. Rhodes v. McWilson,
In Slaughter v. Doe ex dem. Swift, supra, where the defense offered was not a denial of the right of action, Judge Stone adverted *555
to section 2988 of the Code of 1876 (carried into section 5331, Code 1907), declaring that the statute has defined the extent to which the plea of not guilty can be made available; and, aside from the cases indicated therein, if the pleader does not rely solely on a denial of the cause of action, the matter of defense must be specially pleaded. Norton-Crossing Co. v. Martin,
The plea of not guilty puts in issue "all the material allegations of the complaint" in "actions for defamation, or for injuries to the person, or to real or personal property." In the instant action, under the homicide statute (Code, § 2486), the claim is for such damages as the jury may assess for the wrongful act of defendant causing the death of plaintiff's intestate; and "all the material allegations of the complaint" are those showing the wrongful act of defendant causing the death for which the suit is brought; and, the damages being punitive and not compensatory (L. N. R. R. Co. v. Bogue,
This is not in conflict with the rule applied in Karter v. Fields,
In special pleas 2 to 8, inclusive, are averred facts attempting to show (1) freedom from fault; (2) imminent peril to defendant's life and limb; and (3) necessity, which embraces the rule of retreat. The facts averred and on which are sought to be rested the elements of self-defense — freedom from fault and retreat (Madry v. State,
The place or venue of the homicide, the location of the houses of the defendant and of the deceased, the place where the state's witness, the son of deceased, first saw the father in the buggy, etc., just after he was shot, were relevant facts, shedding light upon the questions of venue in that county with two divisions of the circuit court, the necessity of the deceased to pass the home of the defendant in returning to his home by the public road from Albertville, and in so doing tending to show proximity of the parties to or in the public highway, or to the respective homes of the parties. No error was committed in rulings on evidence in relation to such questions of fact.
Defendant and the deceased had had previous difficulties. No error was committed in refusing to allow defendant's questions calling for the details thereof or declarations of the parties. Under an appropriate special plea of self-defense (not under the general issue) evidence tending to show declarations on the part of deceased that were susceptible of the inference by jury of hostile feeling and purpose of the deceased of attacking the defendant would have been competent. Kuykendall v. Edmondson,
There was evidence by the witness Holsenbrook, of a declaration against interest by defendant that was susceptible of the inference, when considered with the other evidence, that defendant was the perpetrator of the homicide. The admission of this evidence was competent, though the court excluded defendant's evidence tending to show the hostility of deceased. Smith v. State,
The remark of the court to counsel, "go ahead; the killing is admitted," was in trying to expedite the trial, and was in response to an objection on the part of defendant's counsel, "That is repetition; what is the use taking up time proving all these things?" There was no reversible error in this, or in other remarks of the court, as, "You are going mighty slow;" "You are mighty late in making the objection."
The permission of inspection by the jury of the buggy in which deceased was riding at the time he was shot by defendant was a matter of the exercise of a sound discretion by the trial court. This discretion was not abused.
Flight may be properly explained, not, however, by self-serving declarations, as what defendant stated he instructed members of his own family to do, in summoning him, when the sheriff came. Hill v. State, supra; Hill v. State.
The argument of counsel for plaintiff was not reversible error, since it was merely a general observation in argument to the jury, for which we will not reverse. No good purpose will be subserved by prolonging the discussion of the evidence, warranting the instructions of the court.
The judgment of the circuit court is affirmed, since under the pleading and evidence the general affirmative charge given for plaintiff was warranted, and there was no error in overruling the motion.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.