Appeal from the City Court of Montgomery.

Tried before lion. T. M. Arrington.

At the February Term, 1881, of said court, the defendant was indicted for an assault upon one Lorenzo Phillips, with the intent to murder or maim him; and the cause was tried on the jilea of not guilty. On the trial, the State examined said Phillips as a witness, who testified that “within twelve months before the indictment was found, and in Montgomery county, he was clerking in a store, when defendant came in and asked for his account. The correctness of the account was denied by defendant, though he paid it. After this, witness told defendant that his wife owed an account at said store, and defendant denied the correctness of that account, and said that witness had swindled or cheated him before. This led to some words between them which culminated in a quarrel between witness and defendant, when defendant dared him out of the store, and with an oath told him if he came out, he, defendant, would chill the blood in witness. Defendant then went out of the store,” and after some moments witness followed, taking in his hand a scale weight. As he was going out of the door, he saw •defendant with an axe in his hand. As witness reached the ground, he stumbled and fell on one knee, and “ as he fell defendant raised the axe in a striking attitude and advanced towards witness. Witness then threw the weight at defendant, and immediately thereupon witness received a blow with the axe from the hands of defendant which knocked him down and cut a gash about two inches long in witness’ face. Defendant then threw down the axe and ran.” This witness was substantially corroborated by others. The evidence tended to show that defendant had no axe in his hand when he was in the store. ■ This being substantially all the evidence bearing on the question raised by the bill of exceptions, the court charged the jury, among ‘other things, that “ if one person challenges another to fight and the other accepts the challenge, and they go out and fight, then neither can invoke the right of self-defense in justification.” To the giving of this charge the defendant excepted. The defendant was convicted of an assault and battery. The error assigned is the giving of the above noted charge.

The charge of the-court was clearly erroneous. It took away from the consideration of the jury the question as to whether or not the “challenge to fight ” was with deadly weapons. It not only excluded from the consideration of the jury the question as to whether or not the defendant, by his conduct, produced the necessity for striking the blow, but stated in effect that his fighting in pursuance of the “challenge to fight” produced, of itself ’, the necessity. See Eiland v. The State, 52 Ala. 322.

…

Citation profile

Relationships

How this case has been treated — in progress