Morris v. McClellan

• Decision Date: 12 May 1910
• Citation: Morris v. McClellan, 169 Ala. 90, 53 So. 155 (Ala. 1910)
• Parties: MORRIS v. MCCLELLAN.
• Court: Alabama Supreme Court

53 So. 155

169 Ala. 90

MORRIS v. MCCLELLAN.

Supreme Court of Alabama

May 12, 1910

Rehearing Denied June 30, 1910.

Appeal from Circuit Court, Limestone County; D. W. Speake, Judge.

Action by Wm. H. McClellan against John Morris, Sr., for assault and battery.Judgment for plaintiff, and defendant appeals.Reversed and remanded.

A former report of this case may be found in 154 Ala. 639, 45 So. 641, where the original pleading is set out in extenso.

Plea 4c is as follows: "Defendant, as an 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 on the son of this defendant; that the defendant, upon seeing the apparent or real danger of his said son, called upon the plaintiff to release his said son, which plaintiff did not do, but continued to act in a manner which would lead a reasonable man to honestly entertain the reasonable belief that the plaintiff intended to inflict grievous bodily harm or death upon the defendant's said son; that at the said time blood was flowing freely from the wounds about the head of defendant's son, which wounds were inflicted thereon by the plaintiff; that when said plaintiff refused to or did not desist from his said attack upon the defendant's son that defendant then shot said plaintiff to protect and save his son from the real or apparent danger in which he then apparently was.And the defendant avers that if any assault had been made upon the plaintiff by defendant's said son Walter Morris, that said assault was made by clasping his arm around or laying his hands upon said plaintiff, and that at the time defendant's said son had no weapon but his naked hand only; that at the time defendant shot the said plaintiff the said plaintiff was using unnecessary and excessive force in repelling any such assault which might have been made upon him by defendant's said son, Walter Morris, in this: That plaintiff was using a pistol upon the head of said Walter Morris; that plaintiff was either striking the said Walter Morris over the head with said pistol, or shooting him in the head or ear with said pistol; that said Walter Morris, at the time defendant shot plaintiff, was bleeding freely from wounds on or about his head, inflicted by said plaintiff with said pistol.And defendant further avers that, though the said Walter Morris may have committed an assault in the manner and form as above set forth upon the said plaintiff yet that plaintiff at the time said defendant committed the alleged assault upon him, as set forth in manner and form in said complaint, and each count thereof, was using unnecessary and excessive force to repel any assault that might have been made upon him by the said Walter Morris, and was unnecessarily abusing and injuring the said Walter Morris, and by so doing the defendant avers that plaintiff thereby committed an assault upon the said Walter Morris; that the said Walter Morris at the time of said assault was firmly held by plaintiff with one hand, and was thus being abused and maltreated by said plaintiff with the other hand; that the time defendant shot said plaintiff was immediately after the pistol in plaintiff's hand had fired and blood had gushed immediately from about the head or ear of defendant's said son, thereby having the effect of impressing on the mind of any reasonable person, and causing such person to entertain the honest belief, that said Walter Morris was in imminent danger of his life, or of grievous bodily harm, and it was at this period of time that this defendant shot the said plaintiff.And this the defendant is ready to verify," etc.

Demurrers were interposed, raising the questions discussed in the opinion.

The following are the charges discussed in the opinion: (10)"I charge you, gentlemen, that the burden of proving the pleas 2a and 3a filed by him in this cause is on the defendant."(15)"The burden is on the defendant to reasonably satisfy the jury of each and every averment contained in his special pleas in this case, except that Walter Morris was free from fault in bringing on the difficulty with McClellan, and if the defendant has failed to establish any material allegations of said plea, except such freedom from fault, then you cannot find for the defendant under such special pleas."

W. R. Walker, for appellant.

M. K. Clements and O. Kyle, for appellee.

ANDERSON J.

This case has been here on former appeal and is reported in 154 Ala. 639, 45 So. 641.It was there held, and we think properly so, and which was in line with former decisions of this court,...