Harris v. State , 123 Ala. 69 ( 1898 )

TYSON, J.

There was no error in allowing the prosecuting witness to testify to her physical condition at the time of the alleged assault and .battery by the defendant upon her.

Charges 1 and 2 refused to the defendant do not negative the willingness of the defendant to enter into the fight. She may not have done anything to have brought about the difficulty, and yet she would be guilty of an assault and battery if she struck the prosecuting witness in a mutual combat, or if she struck a blow after the necessity to strike had passed.—Howell v. The State, 79 Ala. 284.

Charge 3 requested by the defendant was copied from a charge in the case of Bryant v. State, 116 Ala. 446, where it was held to assert a correct proposition of law on the authority of Newsom v. The State, 107 Ala. 134. The court erred in refusing it.

Charge 4 refused to the defendant as it apepars in the record is unintelligible. This may have grown out of a mistake in copying it. However, we do not know this to be true and must pass upon its sufficiency as it appears in the record. There was no error in refusing it.

For the error pointed out the judgment is reversed and the cause remanded.