Opinion
8 Div. 432.
October 13, 1932.
Appeal from Circuit Court, Limestone County; W. W. Callahan, Judge.
R. B. Patton, of Athens, for appellants.
The right of self-defense is founded on the law of nature, and is not one that can be suspended by any law of society. Suell v. Derricott, 161 Ala. 259, 49 So. 895, 23 L.R.A. (N.S.) 996, 18 Ann. Cas. 636; 2 R. C. L. 548; Allen v. State, 28 Ga. 395, 73 Am. Dec. 760. The force one may use in self-defense is that which reasonably appears necessary in view of the circumstances of the case. 2 R. C. L. 551; Suell v. Derricott, supra. What one may do for himself he may do for another. The danger to one's self or kin may not be real, but it is a sufficient defense, if it appears to a reasonable mind that there is danger to life or limb. Suell v. Derricott, supra; Keith v. State, 97 Ala. 32, 11 So. 914; Holmes v. State, 100 Ala. 80, 14 So. 864. An uncommunicated threat may be shown for the purpose of ascertaining who was the probable assailant. Roberts v. State, 68 Ala. 164; Burns v. State, 49 Ala. 370. For the purpose of showing hostility toward a party and for the purpose of affecting his credibility as a witness, it is permissible to show that the witness has expressed feelings of hostility toward the party against whom he was testifying. Henry v. State, 79 Ala. 42; Fincher v. State, 58 Ala. 215; Lodge v. State, 122 Ala. 97, 26 So. 210, 82 Am. St. Rep. 23. In case of assault, it is permissible to show the relative strength of the parties. 2 R. C. L. 553.
J. G. Rankin, of Athens, for appellee.
Charges based on self-defense which pretermit or ignore an essential element of that defense are properly refused. Roberson v. State, 175 Ala. 15, 57 So. 829; Maxwell v. State, 11 Ala. App. 53, 65 So. 732; Tittle v. State, 15 Ala. App. 306, 73 So. 142; Jones v. State, 181 Ala. 63, 61 So. 436. One who seeks to justify his own acts in defense of another stands in the shoes of the other person, and his rights or liabilities are coextensive with such other. Vaughan v. State, 21 Ala. App. 204, 107 So. 797; Wood v. State, 128 Ala. 27, 29 So. 557, 86 Am. St. Rep. 71. Threats or statements in the nature of threats which are general and remote in point of time are properly excluded. Childs v. State, 21 Ala. App. 528, 109 So. 560.
Action of trespass for an assault and battery alleged to have been committed by the defendants, Leonard Moore, Tom M. Moore, and John William Townley, on the plaintiff Welden. There was a verdict and judgment against all the defendants, from which they jointly appeal.
The case was submitted on a joint assignment of errors, without a severance, and only assignments relating to the rights of all the appellants will be considered. Stacey et al. v. Taliaferro et al., 224 Ala. 488, 140 So. 748.
Charge 4, the basis of assignment of error 4, was well refused. It pretermits the right and duty of the plaintiff as an officer armed with a warrant of arrest to make the arrest, Moore's duty to peacefully submit to the arrest, and the defendants' freedom from fault. King v. State, 89 Ala. 43, 8 So. 120, 18 Am. St. Rep. 89; 2 R. C. L. 465, § 23.
The plaintiff testified in part to what occurred between himself, Tom Moore, and Leonard Moore after he entered the house to serve the warrant, immediately preceding the scuffle between the witness and Leonard Moore, and it was the defendants' right to show all that was said and done, as a part of that transaction. Williams v. State, 103 Ala. 33, 15 So. 662; Drake v. State, 110 Ala. 9, 20 So. 450; Gibson v. State, 91 Ala. 64, 9 So. 171; Dodson v. State, 86 Ala. 60, 5 So. 485.
The court therefore erred in sustaining the plaintiff's objection to the question, "And Leonard Moore told you Dr. Bailes was attending him and had put him to bed?" This called for a statement made by the defendant constituting a part of the transaction proved by the plaintiff, and it was clearly within the res gestæ of the main fact.
The defendants were, however, allowed to prove by Leonard Moore and other witnesses that he made the statement to plaintiff that Dr. Bailes was his attending physician, and that Dr. Bailes told him to go to bed. The testimony was not disputed, and the error of the court in sustaining said objection was without injury.
The court overruled the objection to the question made the predicate for assignment of error 8, and the witness gave a negative answer to the question.
The statement of the plaintiff to the witness Mullins, fourteen or fifteen years prior to the occurrence under investigation, was too far removed from the question at issue to be of any probative force, and, moreover, the statement, if made, was too general in its scope to constitute a threat. The court did not err in sustaining the objection and excluding the evidence.
We find no reversible error in the record, and the judgment of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.