TURNER v. STATE, 36 Ala. App. 391 (1952)

56 So.2d 893

TURNER v. STATE.

7 Div. 182.Court of Appeals of Alabama.
February 5, 1952.

Appeal from the Circuit Court, Talladega County, W.D. DeBardelaben, J.

Obe Riddle, Talladega, for appellant.

Si Garrett, Atty. Gen., J.W. Arbuthnot, Asst. Atty. Gen., and Marvin Cherner, Montgomery, of counsel, for the State.

CARR, Presiding Judge.

The accused stood indicted for assault with intent to murder. The trial resulted in a conviction of assault and battery.

Page 392

The only question properly presented for our review is the action of the lower court in refusing to the defendant the general affirmative charge.

The appellant admitted that he inflicted two pocket knife stab or cut wounds on the body of the injured party.

The attending physician testified that he found “a stab wound of the abdomen, and a stab wound in his left rectus muscle, as I remember, about one and a half inches long.” The doctor stated that the abdomen stab wound extended to the left lobe of the liver and made a cut there about two inches in length.

According to the testimony of the State the assault was without legal excuse or justification.

The appellant contended that he was acting in self defense and the evidence in his behalf supported this theory.

However, we think under appellant’s own testimony a jury question was posed. He testified that the injured party grabbed him in the collar and at this time he inflicted tile first stab wound.

In any event, the defendant was not due the general affirmative charge.

The judgment below is ordered affirmed.

Affirmed.