Wilhite v. Fricke
Citation | 169 Ala. 76,53 So. 157 |
Parties | WILHITE v. FRICKE. |
Decision Date | 12 May 1910 |
Court | Supreme Court of Alabama |
Rehearing Denied June 30, 1910.
Appeal from Circuit Court, Morgan County; D. W. Speake, Judge.
Action by William Fricke against James W. Wilhite for an assault and battery. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
The following are the special pleas referred to:
Wert & Lynne and E. W. Godbey, for appellant.
M. A Dinsmore and Callahan & Harris, for appellee.
The proof shows that immediately after the plaintiff grabbed the defendant, when in front of the store, and took the stick away from him and ran around the corner, the defendant went in his store and grabbed his gun and ran back to the front and these facts were admissible as a part of the res gestæ and for the purpose of showing animus. Encyc. of Evidence, vol. 1, p. 1008, note 78.
The record shows that counsel for the plaintiff, in arguing to the jury, "commented upon the wrongful acts of the defendant in loading and augmenting the weight of the hog by oversalting," and that the defendant objected to same and also sought to eradicate said remarks, and the court overruled the objection and request to exclude and to which the defendant excepted. It is true there was proof that the plaintiff accused the defendant with having oversalted the hog and stated that the butcher had deducted something for same; but there was no proof that the hog was actually oversalted, and, indeed, proof of said fact was not admissible. It would have injected a foreign issue into the case and consumed the time of the court in proving or disproving an immaterial fact, but the truth of which might be of great prejudice to the defendant. It was therefore improper for counsel to comment...
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Hardaman v. State
... ... Cross v. State, 68 ... Ala. 476; B.R.L. & P. Co. v. Drennen, 175 Ala. 349, ... 57 So. 876. Ann.Cas.1914C, 1037; Wilhite v. Fricke, ... 169 Ala. 76, 53 So. 157; Jones v. State, 170 Ala ... 76, 54 So. 500; City of Tuscaloosa v. Hill, 14 ... Ala.App. 541, 69 So. 486 ... ...
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City of Tuscaloosa v. Hill
... ... been approved ( B.R., L. & P. Co. v. Drennen, 175 ... Ala. 349, 57 So. 876, Ann.Cas.1914C, 1037; Wilhite v ... Fricke, 169 Ala. 76, 53 So. 157; Jones v ... State, 170 Ala. 76, 54 So. 500; Jackson v ... State, 2 Ala.App. 234, 57 So. 110, 7 ... ...
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Harris v. Wright
...should appear (Drummond v. Drummond, 212 Ala. 242, 102 So. 112), including that of defendant's freedom from fault ( Wilhite v. Fricke, 169 Ala. 76, 53 So. 157). of error 5 and 6 as to rulings on demurrers to pleas 2 and 3 are not well taken. Moreover, it appears these pleas originally conta......
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Strother v. State
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