Wilhite v. Fricke

Citation169 Ala. 76,53 So. 157
PartiesWILHITE v. FRICKE.
Decision Date12 May 1910
CourtSupreme 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: "(2) That plaintiff himself provoked the assault by approaching defendant from the latter's storehouse in a rude insolent, and hostile attitude, and with offensive and opprobrious epithets, all of which were calculated to induce the belief in the mind of a reasonable man, and which did cause the defendant to believe, that he was in danger of great bodily harm from the plaintiff, and therefore the defendant struck at the plaintiff in order to prevent serious injury or great bodily harm to himself from defendant. Whereupon the plaintiff did assault and beat, and continue to assault and beat, the defendant, hurling the defendant to the floor, and struggling with him outside the door of the store. (3) That the plaintiff first assaulted the defendant before the defendant assaulted the plaintiff, and that the altercation was thereby provoked and commenced by the plaintiff's own arm."

Wert &amp Lynne and E. W. Godbey, for appellant.

M. A Dinsmore and Callahan & Harris, for appellee.

ANDERSON J.

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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5 cases
  • Hardaman v. State
    • United States
    • Alabama Court of Appeals
    • February 4, 1919
    ... ... 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 ... ...
  • City of Tuscaloosa v. Hill
    • United States
    • Alabama Court of Appeals
    • April 8, 1915
    ... ... 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 ... ...
  • Harris v. Wright
    • United States
    • Alabama Supreme Court
    • October 27, 1932
    ...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......
  • Strother v. State
    • United States
    • Alabama Court of Appeals
    • June 30, 1916
    ... ... 398; ... Cross v. State, 68 Ala. 484; Childress v ... State, 86 Ala. 86, 5 So. 775; Tannehill v ... State, 159 Ala. 51, 48 So. 662; Wilhite v ... Fricke, 169 Ala. 76, 53 So. 157 ... For the ... error pointed out, the judgment of the court below must be ... reversed and the ... ...
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