Beyer v. Birmingham Ry. L. & P. Co. , 186 Ala. 56 ( 1914 )

SOMERVILLE, J. —

Pleas 2 and 3 assert that plaintiff and defendant’s servant were engaged in a difficulty, • as to which said servant was without fault, and that the latter attempted to repel or prevent an attack on him, using no more force than was reasonably necessary. We think these pleas state the essential elements of self-defense, and were therefore not subject to the demurrrs interposed.

Where the proof is that the alleged self-defender was' not in fact being assaulted, it is, of course, necessary for him .to show that he had reasonable grounds for apprehending a present assault, and his honest belief therein. Under the pleadings here exhibited, that question was one of evidence merely.

The peculiar doctrines of the criminal law with respect to the maintenance of a plea of self-defense in cases of homicide or assault with intent to kill are not applicable to nonfelonious assaults, but are founded upon the humanitarian idea that, “when it' comes to a question whether one man shall flee or another man shall live, the law decides that the former shall flee rather than the latter shall die.”—Eiland v. State, 52 Ala. 322, 332; Sullivan v. State, 102 Ala. 135, 143, 15 South. 264, 48 Am. St. Rep. 22; Stoball v. State, 116 Ala. 454, 460, 23 South. 162; Pierson v. State, 12 Ala. 149.

The imminence or apprehension of “serious bodily harm” about to be inflicted is an indispensable element of defense to him who would excuse a homicide, or an attempt to commit one. This is so because, as, matter of law, the killing of an assailant, without such peril, is excessive self-defense, and is such an abuse of the right as to prevent its valid assertion. For the purposes of self-defense which stops short of killing or attempting to kill, there is no duty to retreat, and no need for the apprehension of serious bodily harm; and it is for the jury to determine in each case whether the defendant’s counter assault was protective and justifiable, or retaliatory and unlawful.—B. R. & E. Co. v. Baird, 130 Ala. 334, 352, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43.

Charges A and B were, under the evidence, well calculated to mislead the jury, if, indeed, they did not actually invade their province. There was no error in their refusal.

The judgment will be affirmed.

Affirmed.

Anderson, C. J., and Mayfield, Sayre, de Graffenried, and Gardner, JJ., concur. McClellan, J., holds that the pleas were subject to the demurrers, and he dissents on that proposition.