Murphy v. Coleman
| Decision Date | 18 December 1913 |
| Citation | 9 Ala.App. 625,64 So. 185 |
| Parties | MURPHY v. COLEMAN. |
| Court | Alabama Court of Appeals |
Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.
Action by Joe C. Coleman against P.F. Murphy for assault and battery. Judgment for plaintiff, and defendant appeals. Affirmed.
The following is defendant's plea 4: "Defendant, for further answer to plaintiff's complaint, says that the assault and battery occurred in his place of business, and the plaintiff followed him to the back part of his store cursing and abusing him, with a knife drawn in his hand, and that he was free from fault in provoking or bringing on the difficulty." The demurrers point out the fact that the plea was not sufficient as a plea of self-defense. Written charges 2 and 3 are as follows: (2) "The burden is on plaintiff to show freedom from fault in bringing on the difficulty on the part of defendant, and not on defendant." (3) "The burden is on plaintiff to show that defendant was free from fault in bringing on the difficulty."
William Jackson and Scott & Aldridge, all of Bessemer, for appellant.
Goodwyn & Ross, of Bessemer, for appellee.
One who would justify, on the ground of self-defense, an assault and battery committed by him upon another, must show that he acted under a real or reasonably apparent necessity of defending himself, and that he used no more force than was reasonably necessary or unavoidable in the situation which confronted him. Thomason v. Gray, 82 Ala. 291, 3 So 38; Morris v. McClellan, 154 Ala. 639, 45 So. 641 16 Ann.Cas. 305; Birmingham Ry., Light & Power Co. v Coleman (Sup.) 61 So. 890. The demurrer to defendant's plea 4 pointed out wherein it failed to show a justification of the assault and battery confessed by it and that demurrer was properly sustained.
It is plain that the plaintiff in bringing his action for an alleged wrongful assault and battery committed upon him by the defendant did not assume the burden of proving that the defendant was free from fault in the matter complained of. Perhaps it was the intention of counsel in drafting written charges 2 and 3 requested for the defendant to state that the burden was on the plaintiff to prove that the defendant was at fault in bringing on the difficulty (Brown v State, 83 Ala. 33, 3 So. 857, 3 Am.St.Rep. 685; Morris v. McClellan, 154 Ala. 639, 45 So. 641, 16 Ann.Cas. 305); but neither of these charges stated such a proposition. ...
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Mount Vernon-Woodberry Mills v. Little
...400, contained the averment that defendant was free "from fault in bringing on the difficulty," an averment in form affirmative (Murphy v. Coleman, supra), and whatever may be said criticism of the holding in those cases, the form of the plea clearly differentiates them from the case at bar......
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Chandler v. Goodson
...force than was reasonably necessary to repel the assault. South Brilliant Coal Co. v. Williams, 206 Ala. 637, 91 So. 589; Murphy v. Coleman, 9 Ala.App. 625, 64 So. 185. There is no evidence that a felonious assault was made by plaintiff upon the defendant, hence charge 22 was abstract and w......
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