Surginer v. State , 134 Ala. 120 ( 1901 )

SHARPE, J.

In a quarrel which, first arose between defendant and one or more of three brothers Yarbrough, defendant’s brother-in-law Campbell sided with him and fought with Bert Yarbrough. Walter and Will Yarbrough engaged either in attempting to sej)arate those combatants' or: in fighting Campbell, and while, the latter ivas underneath Bert Yarbrough fighting and being fought, defendant by separate shots wounded each of the Yarbroughs. This prosecution is for the shooting of Will Yarbrough. In behalf of the State a physician testified he attended Bert Yarbrough’s wound about thirty clays and then dismissed him ; that tiro or three months after the shooting Bert Yarbrough had typhoid fever and died. Thereupon the State was allowed against objection to elicit as evidence the physician’s opinion that the wound inflicted on Bert Yarbrough contributed to his death.

The contributory effect of his wound in producing the death of Bert Yarbrough ivas not a matter pertaining to the res gestae of the offense charged. The testimony concerning it had no tendency to prove either the fact, manner or motive of the shooting of Will Yarbrough and could not have properly assisted in determining whether the defendant ivas guilty of murderously assaulting Will Yarbrough. This testimony was therefore. irrelevant. Its admission involved error which may Lave operated to defendant’s prejudice and therefore the judgment'must be reversed. Whether evidence as to the ultimate effect on Bert Yarbrough of his wound alone as disconnected from, other cause would have been admissible, is not a question raised or decided.

The right of one to use violence in defense of another is recognized by the laAv only where the imperilled person would have been legally justifiable in using like violence in his own defense, and in no case is a necessity for acting in self-defense regarded as ground for an acquittal unless the person seeking shelter thereunder was free from fault in bringing on the difficulty, or had retired therefrom, and was thereafter assailed. — Gibson v. State, 94 Ala. 64; Bostic v. State, 94 Ala. 45; Wood v. State, 128 Ala. 27. That Campbell was not free from fait in that respect was proved by undisputed evidence, and this is so. whether the difficulty be considered as had with one or with the, three Yarbroughs, for1 the testimony including that of Campbell himself leaves no room for doubt that he not only entered willingly into the fight with one, but on the same occasion made an aggressive announcement with reference to the other two brothers calculated 'to provoke hostile action on their part.

Only in connection with evidence tending to establish a right to shoot in defense of himself or Campbell could the defendant. have been entitled to. prove the Yarbroughs were generally known to be dangerous, and there being no such evidence, defendant’s offer to make such proof and requested charges, third to. sixth, inclusive, as well as the eighth charge were properly rejected.

The other rulings, both on matters of evidence and charges, to'which exceptions were, reserved, were plainly correct.

Reversed and remanded.