Spigner v. State , 103 Ala. 30 ( 1893 )

McCLELLAN, J.

In prosecutions for assaults, assaults and batteries and affrays, the defendant may-show, in extenuation or justification of the offense charged, that the person assaulted or beaten used opprobious words or abusive language at or near the time of the assault or affray —Code, § 3749 ; Brown v. State, 74 Ala. 42 ; Prior v. State, 77 Ala. 56. Whether-the person alleged to have been assaulted here used opprobious words or abusive language toward the defendant at or about the time of the assault was the sole matter at issue on the trial below. All the evidence including the testimony of the defendant himself concurred to establish, and the defendant made no pretense of denying the fact the assault and battery alleged was committed by him. On the issue as to the use of opprobious words by Johnson, the person assaulted, the evidence was directly conflicting. With this state of. case before it, the trial court committed no error in instructing the jury that if they believe from the whole evidence that, at or about the time defendant struck Johnson, said Johnson did not use • any opprobious words or abusive language to defendant, they must find the defendant guilty. The Court had a right to assume iu this charge that “the defendant struck Johnson this was not only proved, but also confessed. And the use by Johnson of opprobious words, being defensive matter in respect of which the burden was upon the defendant to reasonably satisfy the jury, the charge was not bad for that it failed to require belief beyond a reasonable doubt. Indeed, it was too favorable to the defendant in this regard. It should have required conviction unless the jury were reasonably satisfied that Johnson did use abusive language, &c., at or near about the time of the assault.

Two charges requested by the defendant were addressed to this issue, and were intended to instruct the jury that if opprobrious words or abusive language were used by Johnson towards the defendant, at or near the time of the assault, and the defendant struck on account thereof, they might consider the use of such words or language in extenuation or justification of the assault as they might determine ; and that, if in their judgment the opprobrium or abuse was sufficient to justify the blow, they could find the defendant not guilty. These instructions were not abstract; the evidence for the defendant tended to support every fact postulated in each of them. The first of them, when referred to the evidence-, and the second, by its own terms, postulates every essential ingredient of the statutory defense, and each of them should have been given.

Reversed and remanded.