Appeal
from Circuit Court, Limestone County; D. W. Speake, Judge.
Tyson
C.J., dissenting in part.
W. H
McClellan sues John Morris, Sr., for assault and battery. The
first count was in Code form for assault and battery. The
second count averred that the defendant willfully shot the
plaintiff with a pistol, a deadly weapon, thereby inflicting
upon his person a highly dangerous and painful wound, from
which assault and battery as aforesaid the plaintiff suffered
great mental anxiety and physical, was confined to his bed
unable to work for a great length of time, incurred large
liabilities for doctor's bills and medicines, and was
permanently impaired in his health. The defendant filed the
following pleas: (1) The general issue. (2) "Defendant
as further and other answer to the said complaint as amended
and to each count thereof, separately and severally, says
that on, to wit, the 25th day of June, 1904, the plaintiff
with a pistol in his hand had hold of the son of defendant
striking or shooting him with said pistol, and that said son
of defendant was very bloody; that the defendant himself was
in a weakened condition, and some little distance from the
point where plaintiff had hold of his (defendant's) son;
that defendant called the plaintiff to turn his son loose, no
attention was paid thereto, and defendant, from the
appearance of things at that time, was apparently unable to
save his son from grievous bodily harm or death, except by
shooting said plaintiff; that under these circumstances the
defendant did shoot plaintiff, when plaintiff immediately
released his (defendant's) son; that defendant made no
further or other attempt to injure said plaintiff, having
thus relieved his (defendant's) son, from his apparently
perilous situation. And this the said defendant is ready to
verify. Wherefore, he prays judgment if the said plaintiff
ought to have and maintain his aforesaid action thereof
against him," etc. (3) "The defendant, for further
and other answer to the complaint as amended, and to each
count thereof, separately and severally, says that, at the
time he shot the said plaintiff, the said plaintiff with a
pistol in his hand was inflicting or preparing to inflict
grievous bodily harm or death upon the son of this defendant;
that the defendant, upon seeing the apparent or real danger
to his said son, called upon the plaintiff to release his
(defendant's) son, which plaintiff did not do, but
continued to act in a manner which would lead a reasonable
person to honestly entertain the reasonable belief that he
(plaintiff) intended to inflict grievous bodily harm or death
to defendant's said son; that at said time blood was
flowing freely from wounds about the head of defendant's
son, which wounds had been inflicted thereon by the said
plaintiff; that, when the said plaintiff refused or did not
desist from his said attack on defendant's said son, the
defendant then shot said plaintiff to protect and save his
son from the real or apparent danger in which he then
apparently was. And this the said defendant is ready to
verify. Wherefore he prays judgment if the said plaintiff
ought to have and maintain his aforesaid action thereof
against him," etc. (4) "For further and other
answer to said complaint as amended, and to each count
thereof, separately and severally, this defendant says that
without fault on his part, and without fault on the part of
his son, the plaintiff was inflicting and had inflicted
grievous bodily hurt upon his (defendant's) son; that
defendant requested the said plaintiff to desist from such
action, which said plaintiff did not do; that thereupon
defendant, being some distance from said plaintiff, shot in
order to save his son from death or grievous bodily harm,
real or apparent. And the defendant further avers that, at
the time he fired the said shot which struck the said
plaintiff, the said plaintiff was armed with a pistol, and
using it upon defendant's son; that, when defendant shot
said plaintiff, the plaintiff released defendant's said
son, and defendant made no further or other attempt to injure
the said plaintiff. And this the said defendant is ready to
verify. Wherefore he prays judgment if the plaintiff ought to
have and maintain his aforesaid action thereof against
him." (5) "Defendant, for further and other special
answer to said complaint as amended, and to each count
thereof, separately and severally, says that plaintiff and a
son of defendant were engaged in a struggle of some kind,
defendant's said son being wounded at the time, and just
before and at the time the defendant shot the plaintiff said
plaintiff was shooting or striking the said son of defendant
with a pistol; that said son of defendant was bleeding at the
time, being from wounds inflicted upon him by plaintiff; that
to a reasonable man the appearance would have generated an
honest belief of a necessity to intervene in defense of
defendant's said son, who was then apparently or in
reality in danger of grievous bodily harm or death at the
hands of said plaintiff. Whereupon this defendant, not being
in a situation to take hold of said plaintiff, called to said
plaintiff to loose the said son of defendant, which plaintiff
did not do, but continued to shoot or strike him with said
pistol; and in defense of his said son defendant shot said
plaintiff, who at the time was using excessive force in
repelling any seeming assault made upon him by
defendant's said son."
The
following demurrers were filed to special pleas 3, 4, and 5,
separately and severally: "(1) That it does not show any
justification for the assault complained of. (2) It does not
aver or show any matter or facts in justification of the
assault by the defendant on the plaintiff by shooting him
with a pistol on the said occasion in question. (3) That it
does not appear therefrom that the defendant used no more
force than was necessary to free his son from the alleged
peril or danger to life or great bodily harm at the hands of
the plaintiff. (4) It does not appear therefrom that in
striking or shooting the son of defendant the plaintiff was
using more force than was necessary to free the plaintiff
from the attack or assault or fighting of the alleged son of
the defendant. (5) That it does not appear therefrom that the
son of the defendant was not attacking, assaulting, or
fighting, or attempting to attack, assault, or fight, the
plaintiff at the time the defendant shot the plaintiff as
averred in said plea. (6) That it does not appear therefrom
that the son of the defendant, in whose behalf he avers he
shot plaintiff, did not willingly enter into the alleged
fight or struggle with the plaintiff, during which alleged
fight or struggle the defendant avers he shot plaintiff. (7)
It does not appear therefrom that the son of the defendant,
in whose behalf the son shot the plaintiff, retreated from
the plaintiff, or attempted in any wise to do so, in the
beginning of or during the alleged struggle or fight
mentioned in the plea. (8) For aught that appears therein,
the son of the defendant, and in whose behalf defendant avers
he shot the plaintiff, was the aggressor in said alleged
difficulty. (9) It does not appear therefrom that the said
son of the defendant did not willingly enter into said
alleged fight or struggle with plaintiff, or that the said
son was not the aggressor in said alleged fight or struggle.
(10) It does not appear therefrom that the said son could not
have retreated from said alleged fight or struggle, or from
the plaintiff, without increasing his danger to life or great
bodily harm. (11) It is not averred or shown thereby that
said son was free from fault in provoking or bringing on said
alleged difficulty. (12) It does not appear therefrom that
the plaintiff sought, brought on, or provoked the alleged
difficulty between the plaintiff and the said son of the
defendant. (13) It does not appear therefrom that
defendant's said son had in good faith retired from such
struggle or fight, if said son provoked or brought it on,
prior to the firing of the shot by the defendant upon
plaintiff. (14) It does not appear therefrom that the said
son could have invoked the doctrine of self-defense in his
own behalf at the time the defendant shot the plaintiff. (15)
It is not averred or shown that there was any necessity for
the defendant to shoot the plaintiff." There were other
demurrers interposed raising like objections to the pleas.
These
demurrers were sustained, and defendant filed a number of
other special pleas, among them plea K, as follows
"Comes the defendant, by his attorney, and for further
and other special answer to the said complaint in this cause
as amended, and to each count thereof, separately and
severally, says: That the plaintiff ought not to have and
maintain his said action against him, because he says that at
the time the said alleged assault and battery was committed
on said plaintiff by this defendant the said plaintiff made
an assault with force and arms upon Walter Morris, who was
then and there the defendant's son, and did then and
there beat, shoot, or otherwise...
