Lunsford v. Walker

COLEMAN, J. — If the defendant does not rely solely on a denial of the plaintiff’s cause of action, he must plead specially the matter of defense. “Not guilty” puts in issue all the material allegations of the complaint. — Code, § 2675. It is a sound rule in pleading, that matter which goes to the complete justification of the charge must be specially pleaded, in order that the plaintiff may be prepared to meet it; and can not be given in evidence under the general issue. — 2 Greenleaf on Ev. §274. Justification must always be pleaded specially. — Ib. § 92; Daniel v. Hardwick, 88 Ala. 559. The most common defense is, that plaintiff made the first assault, and this must be specially pleaded. — 3 Phil, on E v., 518; Slaughter v. Doe, 67 Ala. 494; Phillips v. Kelly, 29 Ala. 635. :There was no conflict in the evidence, that the assault and battery complained of was committed by the defendant upon the plaintiff. If the facts relied upon to justify the assault and battery had been specially pleaded, there might have been such a conflict in the testimony so as not to have authorized the affirmative charge given by the court at the request of the plaintiff. The only plea was the general issue, “not guilty.” The assault and battery having been proven, and admitted by the defendant, there was no error in the charges given at the request of the plaintiff, and by the court of its own motion. These principles of law justified the court in refusing the charges asked by the defendant. They were objectionable upon other grounds. The defendant’s charges which were refused, utterly ignored all consideration of the evidence which tended to show that defendant was at fault in bringing on the difficulty. Furthermore, it is not the belief of the defendant merely, produced by the conduct of the plaintiff, which would [39] justify a striking in self-defense. It must be a “reasonable belief,” to justify an assault. We fail to perceive how any injury could result to appellant from the caution given to the jury by the court. Affirmed.