Abney v. Mize

46 So. 230, 155 Ala. 391, 1908 Ala. LEXIS 258

• Court: Supreme Court of Alabama
• Decided: April 9, 1908
• Status: Published

Opinion

ANDERSON, J.

The plaintiff’s replication to the special pleas was a good answer thereto, and not subject to the demurrers. Moreover, it was but a general traverse as to pleas 4 and 5, as each of said pleas aver that no more force was used than was- necessary, and the replication was but a denial of this averment.

Charges 1 and 2, refused the defendants, are so manifestly bad that a discussoin of them is unnecessary.

Charge 4, requested by the defendants, was properly refused. If not otherwise bad, it invades the province of the jury, and instructs a finding for the defendants, although more force may have been used than was necessary for self-protection. All of the elements of self-defense set up in the charge may have existed, yet it was for the jury to determine if the force used was excessive.

Charge A, given for the plaintiff, asserts the law.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.