Spear v. State

57 So. 510, 3 Ala. App. 52, 1912 Ala. App. LEXIS 382

Opinion

de GEAFFENRLED, J.

Section 6308 of the Code provides that, on the trial of any person for an assault and battery, or affray, he may give in evidence opprobrious words or abusive language used by the person assaulted or beaten at or necur the time of the assault or affray, and such evidence shall be good in extenuation or justification, as the jury may determine. Opprobrious words or abusive language used by the person assaulted or beaten at or near the time of the assault, not in the presence or hearing of the defendant, but communicated to the defendant before the assault, are admissible in evidence under the above provisions of the Code in extenuation or justification of the offense, as the jury may determine. Opprobrious words spoken of, or abusive language used against, a man “behind his back,” and communicated to the man so spoken of or abused, frequently have the same effect upon him as .if spoken in his presence.—Brooke v. State, 155 Ala. 78, 46 South. 491.

In the present case the defendant was indicted for assaulting and beating Cam Smith, and offered to prove that just a few minutes before the difficulty said Oam Smith made use of opprobrious words or abusive language concerning the defendant, not in the presence or hearing of the defendant, but that said opprobrious words or abusive language were communicated to the defendant just a few minutes before the difficulty. The court refused to allow such proof, and in doing so committed an error for which the judgment in this case must be reversed.

Reversed and remanded.