Scott v. State , 113 Ala. 64 ( 1896 )

McCLELLAN, J.

The trial court properly charged the jury to find the issue on the plea of former jeopardy in favor of the State, if they believed the evidence. Scott v. State, 110 Ala. 48.

A defendant prosecuted under section 3775 of the Code “may give in evidence that, at the time of carrying the weapon concealed, he had good reason to apprehend an attack, which the jury may consider in mitigation of the punishment, or justification of the offense.” The particulars of the affray between Moseley and the defendant’s party in the wagon, Avhen taken in connection with defendant’s evidence that he did not have the pistols about his person until he fled from the wagon, &c., &c., tended to show occasion for apprehension on the part of the defendant that Moseley was pursuing, or would immediately pursue and attack him, and should have been received for the consideration of the jury in determining whether the defendant had such apprehension, and carried the weapons in consequence of it.

What Moseley did to Scott after the arrest was properly excluded.

It was no objection to the evidence showing that Scott had pistols concealed about his person ■ that it was obtained, assuming it to have been obtained, in an unlawful search of the prisoner. Hence, the testimony offered to show that Moseley was without authority to arrest and search Scott was properly excluded ; and the charges requested in respect to his want of authority to arrest and search the defendant were properly refused.

We are unable to see any pertinency in the fact, that Moseley had not seen Saint Wells since the day of Scott’s arrest, had to any issue in the case. It should not have been admitted in evidence.

If in connection with the fact, if it be a fact, that Moseley ran “Johnston Buchanan away from Huntsville,” it be made to appear, inferential!/ or otherwise, that that conduct on Moseley’s part had any relation to this case — as, for instance, that Buchanan was made to leave to keep him from testifying for the defendant — the fact itself should be received in evidence as tending to show the animus of Moseley, a witness against the prisoner.

Reversed and remanded.