Bean v. Stephens

• Decision Date: 12 October 1922
• Docket Number: 8 Div. 381.
• Parties: BEAN v. STEPHENS.
• Court: Alabama Supreme Court

94 So. 173

208 Ala. 197

BEAN v. STEPHENS.

8 Div. 381.

Supreme Court of Alabama

October 12, 1922

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by Lizzie Stephens, as administratrix, against John C. Bean for the wrongful death of George Stephens. From a judgment for plaintiff, defendant appeals. Affirmed.

Bouldin & Wimberly and John B. Tally, all of Scottsboro, for appellant.

John F Proctor, of Scottsboro, and John A. Lusk & Son, of Guntersville, for appellee.

McCLELLAN J.

The plaintiff (appellee), as administratrix of the estate of George Stephens, deceased, was awarded judgment against appellant in her action under the Homicide Act (Code, § 2486) for the death of Stephens, which was caused by appellant's shooting him with a pistol. In counts 1, 2 3, and 4, respectively, the plaintiff alleged that the killing was done "wrongfully" by appellant; was done "wrongfully and unlawfully"; was done "wrongfully, unlawfully, or wantonly"; was committed "wrongfully, unlawfully, or wantonly, or maliciously." It appears from the record that, besides general traverse of the complaint, the issues submitted to the jury were those resulting from the averments of special pleas 5, 6, and 7-reproduced in the report of the appeal.

No demurrer was interposed to any of the pleas. Where the sufficiency of a pleading, in a court of general jurisdiction, is not appropriately questioned on the trial, all reasonable intendments are indulged in favor of the pleading to support the judgment. Lessley v. Prater, 200 Ala. 43, 45, 75 So. 355, and earlier decisions therein cited.

Error cannot be imputed to the court in respect of the general, indefinite question seeking to elicit from the witness Dr. Rosser a recital of what Stephens said after he was shot; it not being at the time made known to the court what answer to the question was expected. The statement by counsel of the question's legal theory, viz. to elicit testimony of declarations against interest on the part of Stephens, did not suffice to advise the court as the rule requires. 1 Mich. Ala. Dig. p. 353, § 205.

There is in the bill of exceptions no sufficient exception to any part of the oral charge of the court. The recital is:

"At the conclusion of said oral charge the defendant excepted to that part of the oral charge of the court touching the doctrine of retreat; also to the statement of burden of proof on that issue."

If exception is desired to be reserved to a part of the oral charge of the court to the jury, it must be taken and reserved to the particular language the exceptor conceives to be erroneous. Gen. Elec. Co. v. Ft. Deposit, 174 Ala. 179, 188, 56 So. 802; B. R., L. & P. Co. v. Friedman, 187 Ala. 562, 570, 65 So. 939; Beech v. State, 205 Ala. 342, 87 So. 573.

Of the several special requests for instruction, refused to appellant and assigned for error, those numbered 5, 8, 9, and 10, as reproduced in the transcript, were so imperfect or...