Osborne v. State

140 Ala. 84 | Ala. | 1903

MoCLELLAN, C. J.

It will suffice to say in support of the court’s action in sustaining the objection to the question: “A short time prior to the killing had there not been attempts made to break into your house at night?” propounded to the defendant, that the question called for a conclusion of the witness. She should have been called on in the first instance to state the occurrences supposed to constitute the attempts, to break into her house, assuming without deciding that the matter was pertinent. The other questions in this connection were open to the same objection, as well as to others which will not be discussed.

Of the charges refused to the defendant all but that numbered 13 were properly refused.

The 13th charge should have been given. ! The evidence afforded bases for inference on the part of: the jury that the deceased at night broke into and entered the house of defendant, there assaulted her with intent to have carnal knowledge of her against her will, desisted upon an outcry being made and ran out of the house, but soon returned, and while re-entering the house, i. e., being in the hallway and going again towards defendant’s room, she, reasonably believing it necessary to save herself from a renewal of his felonious assault, shot and killed him. The charge was, therefore, not abstract. And undoubtedly, if the facts were in line with the inferences stated, she had a right to kill the intruder, and should be acquitted as declared in this instruction.

Reversed and remanded. ■