Mitchell v. Gambill

• Court: Supreme Court of Alabama
• Writing for the Court: DOWDELL, J.
• Citation: 37 So. 290,140 Ala. 316
• Decision Date: 10 May 1904
• Parties: MITCHELL v. GAMBILL.

37 So. 290

140 Ala. 316

MITCHELL
v.
GAMBILL.

Supreme Court of Alabama

May 10, 1904

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by James A. Mitchell against A. A. Gambill for assault and battery. From a judgment for plaintiff for $2.50 only, he appeals. Reversed.

The defendant pleaded six pleas. The first, second, and third pleas were the general issue. The other pleas, numbered 4, 5, and 6, were, upon the motion of the defendant, withdrawn. On the trial of the case it was shown that the defendant had committed assault and battery upon the plaintiff. It was further shown that the assault and battery was the result of a dispute or quarrel between the plaintiff and defendant. During this quarrel the defendant called the plaintiff a liar, whereupon the plaintiff used a most opprobrious epithet towards the defendant, and the defendant thereupon assaulted and struck him several times. During the argument of the defendant's counsel, he read to the court, in the presence of the jury, section 4345 of the Criminal Code of 1896. The plaintiff objected to the reading of this section by the defendant's counsel, and duly excepted to the court overruling his objection. Upon the request of the plaintiff, the court gave the general charge to the jury in writing. The plaintiff separately excepted to the following portions of the court's general charge, which are numbered for convenience: "(10) The defendant may also be allowed to prove that at the time, or just immediately before, the plaintiff used rude, vulgar, or insulting language to him or about him, and that immediately thereupon he struck the blow or blows. The jury trying the case may look to and consider such rude, vulgar, or insolent language in mitigation of damages or in justification." "12) If the jury, in their sound discretion and examination of all the evidence and facts, should consider that the defendant was justified in striking plaintiff, they have a right so to find, and if they so find, they must find a verdict in favor of the defendant. (13) If the jury, after due consideration of all the evidence and facts in this case, are reasonably satisfied that plaintiff brought on by his own acts the difficulty between himself and defendant, and defendant did not carry his assault and battery to an unreasonable or unlawful extent, then plaintiff could not recover in this action." Among the other charges requested by the plaintiff, and to the refusal to give...