Henry v. State , 79 Ala. 42 ( 1885 )

CLOPTON, J.

The court did not err in excluding evidence of the manner and conduct of the witness Nowlin, and of his being angry and agitated, when at Henry’s store in the morning of the day on which the rencontre occurred. It was too far removed, in point of time and place, from the subsequent battery, to constitute a part of the res gestae; and was not admissible, either in extenuation or in justification.—Rosenbaum v. State, 33 Ala. 354; Keiser v. Smith, 71 Ala. 481. Neither was it admissible as affecting the credibility of the witness. While, for this purpose, it is admissible to show the feeling, whether of sympathy or hostility, which the witness may have, or may have expressed, towards the party by or against whom he is introduced, it is not competent to show that he entertained such feeling towards another person, who did not take part in the difficulty.

There was evidence tending to show that the defendant was instrumental in bringing on the combat. Any one who provokes, or is instrumental in bringing on a personal rencontre, is precluded to set up the plea that he struck in self-defense. “A provoked assault is no defense.”—Page v. The State, 69 Ala. 229; 1 Whar. Crim. Law, § 628. Also, if the defendant did not provoke the rencontre, he must, in order to avail himself of the plea of self-defense, have avoided or declined the combat, if there was any reasonable mode of escape without endangering his safety. Each of the charges requested by defendant, ignored in its hypothesis both of these essential elements of the doctrine of self-defense; and for this reason was properly refused, without considering whether the rule is otherwise correctly asserted.

Affirmed.