Howell v. State , 79 Ala. 283 ( 1885 )

SOMERYILLE, J.

It is true that, where two persons meet together, and quarrel by bandying opprobrious or insulting words, and then fight each other willingly, or by mutual consent, it is immaterial which of them commenced the quarrel, for neither can set up the plea of self-defense. If the place of the fighting be public, each would be guilty of an affray; if private, of an assault and battery.

So, the combatant who provokes a difficulty, by using the first words of insult, or otherwise, being regarded as the aggressor, can not plead that he afterwards struck in self-defense, whether he fought willingly or unwillingly. But not so with the one who merely answers one verbal insult or abusive epithet with another. This does not deprive him of the privilege of afterwards defending himself without being amenable to the law, provided he did not fight willingly, or by his voluntary consent. Not being the author or originator of the difficulty, he may still protect his person from assault and injury, by opposing force to force so far as may be necessary, taking care that he uses no more violence than is requisite to repel the attack upon him ; in other words, that his defense does not degenerate into aggression.

The rulings of the court not being in harmony with this view of the law, the judgment must be reversed, and the cause remanded.