Morrell v. State

136 Ala. 44

• Court: Supreme Court of Alabama
• Decided: November 15, 1902
• Status: Published

Opinion

STIARPE, J.

Section 4939 of the Code requires that “when the defense, of insanity is set up in any criminal prosecution it must be by special plea, interposed at the time of arraignment ” etc. Defendant’s absolute right to defend on the ground of insanity wa.s lost by her failure to plea to that end when she was arraigned, and her right to thereafter interpose that defense was subject to the trial court’s discretion. If it be conceded that the court’s action in that regard can properly he reviewed, the revision cannot extend beyond the ascertainment of whether there was an abuse of discretion, and that there was such- abuse in the present case does not appear.

The undisputed evidence shows the deceased when shot, was either asleep or was lying down quietly; that he was then making no hostile demonstration towards the defendant, and that the defendant had opportunity to escape from any immediate danger she may have had reason to apprehend. Under such evidence no question of self-defense arose and consequently evidence of the violent and dangerous character of the deceased was properly rejected. Such evidence could have been relevant only in connection with evidence of an. overt act of attack on the part of the deceased, and for the purpose of illustrating the character of the attack together .with its tendency to excite in the. defendant, a reasonable belief that she was in peril of great bodily harm and of a consequent necessity to slay the assailant in order to avert such harm. Payne v. State, 60 Ala. 80; Eiland v. State, 52 Ala. 323; Roberts v. State, 68 Ala. 156; Karr v. State, 100 Ala. 4.

No error in the record is discovered, and the judgment must be affirmed.