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In Bean v. Stephens, 208 Ala. 197, 94 So. 173, 175, the rule is thus stated, that "If exception is desired to be reserved to a part of the oral charge of the court to the jury, it must be taken and reserved to the particular language the exceptor conceives to be erroneous" and to be presented for review.
Summary of this case from Pollard v. RogersOpinion
8 Div. 381.
October 12, 1922.
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
Bouldin Wimberly and John B. Tally, all of Scottsboro, for appellant.
In this action by the administratrix, under Code, § 2486, all defenses are available to the defendant which would be available if the action had been brought by the person injured, if death had not resulted therefrom. 161 Ala. 259, 49 So. 895; 179 Ala. 386, 60 So. 937; 195 Ala. 340, 70 So. 267; 158 Ala. 396, 48 So. 485, 17 Ann. Cas. 516; 17 C. J. 1186. Where there is a mere charge of wrongful or wanton injury, without an averment of intent to murder, or willful or intentional attempt to kill, the doctrine of retreat does not apply. 11 Ala. App. 125, 65 So. 860; 12 Ala. App. 519, 67 So. 758; 16 Ala. App. 93, 75 So. 641; 17 Ala. App. 508, 85 So. 877; 200 Ala. 650, 77 So. 24; 93 Ala. 37, 8 So. 386; 5 C. J. 636. The questions propounded by defendant to Dr. Rosser should have been allowed. 4 Ency. Ev. 91; 66 Neb. 566, 92 N.W. 756; 47 N.C. 41, 62 Am. Dec. 190; 55 Barb. (N.Y.) 476; 48 Ill. 475, 95 Am. Dec. 561.
John F. Proctor, of Scottsboro, and John A. Lusk Son, of Guntersville, for appellee.
When objections are sustained to questions asked a witness, the party complaining must show what the answer of the witness would have been, had he been permitted to answer. 166 Ala. 460, 52 So. 75; 73 Ala. 23; 74 Ala. 485; 115 Ala. 468, 22 So. 282; 17 Ala. App. 290, 84 So. 545.
The plaintiff (appellee), as administratrix of the estate of George Stephens, deceased, was awarded judgment against appellant in her action under the Homicide Act (Code, § 2486) for the death of Stephens, which was caused by appellant's shooting him with a pistol. In counts 1, 2, 3, and 4, respectively, the plaintiff alleged that the killing was done "wrongfully" by appellant; was done "wrongfully and unlawfully"; was done "wrongfully, unlawfully, or wantonly"; was committed "wrongfully, unlawfully, or wantonly, or maliciously." It appears from the record that, besides general traverse of the complaint, the issues submitted to the jury were those resulting from the averments of special pleas 5, 6, and 7 — reproduced in the report of the appeal.
No demurrer was interposed to any of the pleas. Where the sufficiency of a pleading, in a court of general jurisdiction, is not appropriately questioned on the trial, all reasonable intendments are indulged in favor of the pleading to support the judgment. Lessley v. Prater, 200 Ala. 43, 45, 75 So. 355, and earlier decisions therein cited.
Error cannot be imputed to the court in respect of the general, indefinite question seeking to elicit from the witness Dr. Rosser a recital of what Stephens said after he was shot; it not being at the time made known to the court what answer to the question was expected. The statement by counsel of the question's legal theory, viz. to elicit testimony of declarations against interest on the part of Stephens, did not suffice to advise the court as the rule requires. 1 Mich. Ala. Dig. p. 353, § 205.
There is in the bill of exceptions no sufficient exception to any part of the oral charge of the court. The recital is:
"At the conclusion of said oral charge the defendant excepted to that part of the oral charge of the court touching the doctrine of retreat; also to the statement of burden of proof on that issue."
If exception is desired to be reserved to a part of the oral charge of the court to the jury, it must be taken and reserved to the particular language the exceptor conceives to be erroneous. Gen. Elec. Co. v. Ft. Deposit, 174 Ala. 179, 188, 56 So. 802; B. R., L. P. Co. v. Friedman, 187 Ala. 562, 570, 65 So. 939; Beech v. State, 205 Ala. 342, 87 So. 573.
Of the several special requests for instruction, refused to appellant and assigned for error, those numbered 5, 8, 9, and 10, as reproduced in the transcript, were so imperfect or involved as to justify their refusal by the court on that ground alone.
It appears in terms from special plea 5, to which no demurrer was interposed, that "self-defense" was an excuse or justification, the pleader, the defendant, intended thereby to assert. Notwithstanding the pleader's employment of the phrase "self-defense in this," the court may very well have interpreted this plea as comprehending "self-defense," as defined in our criminal jurisprudence, and hence regarded plea 5 as including that element of "self-defense" commonly referred to as the "duty to retreat" in circumstances appropriately imposing that duty. Special plea 7 also carried the allegation that the "defendant," at the time he was being menaced, "had no reasonable means of escaping therefrom," thereby affording premise for the court's deduction that the pleader himself recognized the duty of excluding by averments the presence of a reasonable avenue of escape as a condition to his right to shoot his adversary. Under the issues proposed by the defense specially pleaded, as stated, it cannot be affirmed that the court erred in refusing, in the civil action (see Suell v. Derricott, 161 Ala. 259, 267, 49 So. 895, 23 L.R.A. [N. S.] 996), to instruct the jury that the "duty to retreat" was not an element of the law applicable to the case.
The court did not err in refusing special charges 1 and 3, requested for defendant.
It is hardly necessary to add that the facts hypothesized in special request 7, refused to defendant, fell short of defining a sound right to act in "self-defense," for that it would have justified the shooting of Stephens by defendant, even though Bean was not free from fault in bringing on the difficulty.
No prejudicial error being shown, the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.