Morris v. McClellan , 169 Ala. 90 ( 1910 )

ANDERSON, J.

This case has been here on former appeal and is reported in' 154 Ala. 639, 45 South. 641. It was there held, and we think properly so and which was in line with former decisions of this court, that in civil, as in criminal, cases all elements of self-defense must exist in order to excuse or justify the assault, and we may add that, in order for,the defendant to defeat the plaintiff’s right to recover, it must appear that he was free from fault (that his son Walter whose place he took was free from fault) in provoking or bringing on the difficulty. Plea 4c does not set up freedom from fault in provoking or bringing on the difficulty, but seeks to justify upon the theory of what might be termed “comparative force,” and which is unknown to the doctrine of self-defense in this jurisdiction. Of course, excessive force to repel an attack of an aggressor at fault might render the excessive assailant guilty also, but his excess will not justify or excuse the first wrongdoer entirely. It might be considered by the jury in mitigation of damages, but the plea seeks to set it up as a complete defense to the action. Nor does the plea set up a bona fide retirement so as to relieve the defendant of previous fault in provoking or bringing on the difficulty.

The trial court did not err in sustaining the demurrer to defendant’s plea 4c.

When a struck jury is demanded, both sides are entitled to a list containing 24 fair and impartial jurors and should not be subjected to the peril of having a juror put upon them who is disqualified to sit as a juror in the case. The court should ascertain if any of the jurors are disqualified before the parties are required to strike. — Steed v. Knowles, 97 Ala. 573, 12 South. 75; Dothard v. Denson, 72 Ala. 543; Davis v. Hunter, 7 Ala. 137. “The law, common and statutory, is careful to exclude from the jury box a juror who has, in any degree, prejudged the issue he is to try; or who is under any bias, or want of impartiality, which would prevent him from hearing, trying, and determining fairly.” If a juror has acted in a previous case, whether the parties are identical or not, but which involved the controverted facts in the present case, whether there was a verdict or a mistrial, he cannot he considered an impartial juror upon the consideration of the same facts in a succeeding trial and should be excluded, notwithstanding these facts did not give a special statutory ground of challenging. “The impartiality of the jury box , the purity of the administration of justice, would require it.” — Smith v. State, 55 Ala. 1; Wickard v. State, 109 Ala. 45, 19 South. 491; Carr v. State, 104 Ala. 4, 16 South. 150; Dothard v. Denson, 72 Ala. 543. The jurors Hawkins and Clem, having served in the case of State v. John Morris, Jr., and having heard and considered the facts, which included the controverted facts in the present case, should have been stricken from the list, and the trial conrt erred in putting said jurors on the defendant over his objection.

It is well settled that, in order for the defendant to escape liability, in a civil action for an assault and battery, under self-defense, it must be specially pleaded and proven. — McClellan v. Morris, supra; Mitchell v. Gambill, 140 Ala. 316, 37 South. 290. And charge 10, given at the request of the plaintiff, was in the abstract a general correct statement of the law. It is true that when the defendant proves a pending, imperious necessity to commit the assault, he meets the burden of proof, and the burden of showing that defendant was not free from fanlt in provoking or bringing on the difficulty is shifted to the plaintiff. — Wilkins v. State, 98 Ala. 1, 13 South. 312. This fact, however, does not relieve the defendant oí proving his plea; it merely means when he proves the constituents of self-defense, other than freedom from fault, he meets the burden and proves his plea, and if the charge was misleading it could be made clear by an explanatory charge, instructing the jury as to what was necessary for the defendant to show in order to meet the burden of proving his special pleas. Indeed, charge 15 given at the request of the plaintiff, instead of contradicting charge 10, was in effect an explanation or qualification of same. One dealt with the burden of proof generally, and the other dealt with the ingredients and explained what was necessary for the defendant to show in order to prove his special pleas.

The other questions urged by appellant have been already decided adversely to him, either‘upon the former appeal of this case, or in other cases involving the same facts, and it would serve no- good purpose to discuss them in the present opinion.

For the error above suggested, the judgment of the .circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell-, G. J., and Mayfield and Sayre, JJ., concur.