George v. State , 145 Ala. 41 ( 1906 )

ANDERSON, J.

The bill of exceptions does not disclose that an objection was made to the court’s making defendant go to trial, or an exception to the action of the court. — Walker v. State, 117 Ala. 85, 23 South. 670.

The trial court committed no error of which the defendant can complain in permitting the witness to testify that deceased told him he was cut. He did not say defendant cut him; but, had he so stated, it would have been innocuous, as the undisputed evidence showed- that defendant cut the deceased.

If the threats testified to by witness Sylvester- were prima facie admissible on the direct examination, they should have been excluded upon the motion of the defendant, as the witness showed by his evidence on cross-examination that the threats had no reference to the deceased or any member of his family.

The trial court, in the oral charge, stated “that a blow from the hand or fist never justified the use of a deadly weapon.” The law is that á blow from the hand or fist under ordinary circumstances, neither justifies nor excuses the use of a deadly weapon. — Scales v. State, 96 Ala. 69, 11 South. 121 ; Davis v. State, 152 Ind. 34, 51 N. E. 928 ; 71 Am. St. Rep. 322 ; Strickland v. State,, 98 Ga. 84, 25 S. E. 908.

Charge 1, requested by defendant, asserted a correct abstract proposition of law, and should have been given.

Charge 2, requested by the defendant, was properly refused. It was argumentative and emphasized certain facts. — Hussey v. State, 86 Ala. 34, 5 South. 484 ; Smith v. State, 88 Ala. 73, 7 South. 52 ; Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904 ; Gilmore v. State, 126 Ala. 20, 28 South. 595.

Charge 3, requested by the defendant, was properly refused. If not otherwise bad, it pretermits not entering into the conflict willingly. He may have been free from fault in bringing on the difficulty; yet, if he entered into it willingly, he cannot invoke the doctrine of self-defense.

Without determining the correctness or not of charge 4, given at the request of the defendant, or sanctioning the action of the court in qualifying the same, the qualification was not a correct statement of the law. The defendant did not have to wait until a felonious assault was made upon him. If the other elements of self-defense existed, and the deceased had made threats against him, which had been communicated to him, he had the right to act upon any overt act or hostile demonstration, which may have led to the honest belief that he was in imminent peril, but which said act or demonstration may not have amounted to a felonious assault.

The judgment of the circuit court is reversed, and the cause remanded.

Reversed and remanded.

Haralson, Dowdell, and Denson, JJ., concur.