Appellee recovered a judgment against appellant for damages as the result of an assault and battery, and from this judgment the appeal is prosecuted.
Defendant struck the plaintiff on the head with a baseball bat, which, according to some of the witnesses, was about three feet in length and four inches in circumference at the large end. The plaintiff was felled to the ground, his skull crushed, and he did not regain consciousness, according to his own testimony, until after the operation at the infirmary about three days thereafter. This difficulty occurred just following a baseball game between two rival teams.
The evidence for the plaintiff tended to show that at the close of the game he was with his sister and one Charlie Logan, the latter being his first cousin. Logan had his arm in that of plaintiff, and that plaintiff had started home. He did not see the defendant, nor had he had had any difficulty with him; no words passed between the two, but just before he was struck he heard one Cornelius (who was jointly sued with the defendant, but in whose favor the jury returned a verdict) say, "If you are going to do anything, now is your chance, Dave," and that it was then that he was struck, but he did not see the blow. Other evidence offered by the plaintiff tended to show that, while plaintiff and Logan were there together, the defendant, from the rear, struck the plaintiff on the *Page 295 head with a baseball bat, as previously stated, and as the plaintiff fell to the ground the defendant then struck with the same instrument his companion, Logan, also felling him to the ground. Logan testified that as the plaintiff fell that pulled him around, and as he turned he saw the bat in the defendant's hand coming down on him also. The two blows were struck one immediately following the other; one witness placing the two blows at 15 seconds apart, another saying, "As quick as Thompson struck Gilliland, he struck Logan."
While the assault upon Logan was not involved upon the trial of this case, yet this evidence was offered by plaintiff, and presumedly admitted upon the theory that it was a part of the res gestæ being contemporaneous with the main transaction, and a part thereof. Smith v. State, 88 Ala. 73,7 So. 52; A. G. S. R. Co. v. Hawk, 72 Ala. 112, 47 Am. Rep. 403; B'ham Macaroni Co. v. Tadrick, 205 Ala. 540, 88 So. 858; 5 Mayf. Dig. pp. 410, 411.
The evidence offered by the defendant was in direct conflict with that of plaintiff. According to his theory, some girls were engaged in a quarrel, and he went to where they were and suggested that they have no trouble there; that immediately the plaintiff made an insulting remark, with some profanity, and started toward him with an open knife in his hand, and it was then he struck the plaintiff with the bat in his left hand. The defendant offered to prove by a number of witnesses, as well as his own testimony, that immediately upon striking the plaintiff, his companion, Logan, advanced upon him with a knife in his hand, and that was the occasion of striking Logan.
Plaintiff objected to this testimony of the defendant, which objection was sustained, and exception reserved. This action of the court constitutes reversible error. It was admissible by way of explanation of the blow struck Logan, and in contradiction of the evidence offered by the plaintiff.
The defendant offered evidence tending to show that plaintiff had made threats against his life. Both of the parties testified they had no difficulty, and the plaintiff insists he made no such threats. Plaintiff also denied he had in his possession a knife at the time the blow was struck. The defendant offered to prove by one Hudson that about 5 or 10 minutes before the difficulty the witness saw the plaintiff with an open knife in his pocket, and remarked to the plaintiff that he might lose it, whereupon the plaintiff pulled it out of his pocket and winked at the witness.
In view of all the facts and circumstances and the conflicting theories of the parties to this cause, we think this evidence was admissible, and that the court erred in declining to hear this proof. 5 Corpus Juris, 665, 666; Hainsworth v. State, 136 Ala. 13, 34 So. 203; Miller v. State, 107 Ala. 40, 19 So. 37.
Plaintiff brought out evidence on cross-examination of the defendant tending to show that immediately after the difficulty he fled and secreted himself. In explanation of this, defendant offered to show that he was informed that plaintiff's father was searching for him with a gun. The court sustained the plaintiff's objection to this testimony, but we are of the opinion it was admissible by way of explanation of the foregoing testimony as to flight, and that the court committed error in so ruling. Lewis v. State, 96 Ala. 6, 11 So. 259, 38 Am. St. Rep. 75.
There is no merit in the insistence of counsel for appellant to the effect that the court erred in charging the jury as to the defendant's duty to retreat in defining the elements of self-defense. This argument is based upon those authorities treating the question of simple assault and battery — those assaults which are of a nonfelonious character. Beyer v. B. R. L. P. Co., 186 Ala. 56, 64 So. 609. Such authorities, however, are without influence upon the instant case, as the evidence tends to show an assault with intent to kill — a felonious assault.
For the errors indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.