Carlton v. Henry

• Decision Date: 11 April 1901
• Parties: CARLTON v. HENRY ET AL.
• Court: Alabama Supreme Court

29 So. 924

129 Ala. 479

CARLTON v. HENRY ET AL.

Supreme Court of Alabama

April 11, 1901

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by S. J. Carlton against James F. Henry and E. A. Rogers to recover for an assault. Judgment for defendants, and plaintiff appeals. Reversed.

The defendants pleaded the general issue, and also pleaded a special plea, in which they set up that the alleged assault and battery on the plaintiff was brought about by the plaintiff first assaulting the defendant Henry, and that said defendant acted only in self-defense, and did not bring on or provoke said difficulty, but only used such force in resistance of the plaintiff's assault on the defendant as was necessary to repel the same. The evidence for the plaintiff tended to show that the defendants James F. Henry and E. A. Rogers came to the plaintiff's place of business, which was an ice factory, hunting for a man who had killed Rogers' dog; that, upon entering the plaintiff's office, they asked for one Stallings, who was in the plaintiff's employ; Stallings was sent for, and upon entering the office, Rogers asked him if he (Stallings) had killed his dog, and, upon Stallings saying that he did Rogers kicked him, and as Stallings ran from the office Rogers and Henry chased him into the ice factory, and then across Carlton's premises, and Rogers shot at Stallings that as Henry and Rogers were running after Stallings, when he went into the factory, and after they had passed through the door leading into the factory, and Carlton had reached the door, Henry turned suddenly to go in another direction and came face to face with Carlton and plaintiff, caught him in both hands, and violently threw Carlton to one side; that after Stallings had run off, Rogers and Henry turned, and walked back towards the plaintiff's office, Rogers carrying his pistol in his hand; that, as they walked up to where Carlton was, he and Henry exchanged a few words, and Henry knocked Carlton down several times, slapped his jaws and kicked him; and that while this was being done Rogers stood by, holding his pistol in his hands. Some of the witnesses for the state testified that Rogers kept his pistol on Carlton while Henry was beating him. The evidence for the defendants tended to show that when Rogers and Henry returned from chasing Stallings, Henry undertook to apologize to Carlton for knocking him up against the door, and, upon Carlton remonstrating, and striking at him, Henry knocked him down, and that Rogers had nothing to do with the rencounter between Carlton and Henry. The court, at the request of the defendants, gave to the jury the following written charges, to the giving of each of which the plaintiff separately excepted: (c) "The court charges the jury, if the jury are reasonably satisfied from the evidence that Carlton himself first assaulted Henry, and that Henry resisted said assault by striking Carlton with his fist, and that Henry only acted in self-defense; that Henry did not bring on or provoke the difficulty, and only used such force in resistance as was, or reasonably appeared to be, necessary to repel plaintiff's assault,-then plaintiff cannot recover." (n) "The court charges the jury there is no evidence tending to show that Rogers had anything to do with pushing Carlton out of the way at the ice factory." (z) "The court charges the jury that the...