64 So. 185 | Ala. Ct. App. | 1913
One who would justify, on the ground of self-defense, an assault and battery committed by him upon another, must show that he acted under a real or reasonably apparent necessity of defending himself, and that he used no more force than was reasonably necessary or unavoidable in the situation which confronted him. — Thomason v. Gray, 82 Ala. 291, 3 South. 38; Morris v. McClellan, 154 Ala. 639, 45 South. 641, 16 Ann. Cas. 305; Birmingham Ry., Light & Power Co. v. Coleman (Sup.) 61 South. 890. The demurrer to defendant’s plea 4 pointed out wherein it failed to show a justification of the assault and battery confessed by it, and that demurrer was properly sustained.
It is plain that the plaintiff in bringing his action for an alleged wrongful assault and battery committed upon him by the defendant did not assume the burden of proving that the defendant was free from fault in the matter complained of. Perhaps it was the intention of counsel in drafting written charges 2 and 3 requested for the defendant to state that the burden was on the plaintiff to prove that the defendant was at fault in bringing on the difficulty (Brown v. State, 83 Ala. 33, 3 South. 857, 3 Am. St. Rep. 685; Morris v. McClellan, 154 Ala. 639, 45 South. 641, 16 Ann. Cas. 305) ; but neither of these charges stated such a proposition. There was no error in refusing to give them as they were framed.
Affirmed.
