
    Morrell v. The State.
    
      Indictment for Murder.
    
    1. Pleas and defenses; when plea of insanity comes too late. Where, upon the arraignment of a defendant under a charge of murder, she interposed the plea of not guilty, she thereby loses the right to subsequently plead “not guilty by reason of insanity,” and the allowing of the subsequent interposition of such plea is addressed to the sound discretion of the trial court, which will not be reviewed, except where there is shown an abuse of the discretion.
    2. Homicide; when character of deceased inadmissible. — On a trial under an indictment for murder, when it is shown that at the time of the killing the deceased was asleep and was making no hostile demonstration toward defendant, and that the defendant had an opportunity to escape from any immedi-
    
      ate danger, although the deceased had previously threatened to kill her, evidence of the violent and dangerous character of the deceased is inadmissible.
    Appeal from tlie Circuit Court of Shelby.
    Tried before the Hon. John Phliiam.
    The appellant in this case, Lon Morrell, was indicted, and tried for the murder of Levi Morrell, was convicted of murder in the first degree, and sentenced to the penitentiary for life.
    When the defendant was arraigned for trial she pleaded not guilty, and the cause was set for trial for a succeeding day of the term of the court. When the cause was called for trial on the day set therefor, the defendant, through her attorney, asked leave of the court to withdraw the plea of not guilty and put in the plea of not guilty by reason of insanity. The State objected upon the ground that the plea of. not guilty on the ground of insanity came too late. The court sustained the objection, and refused to allow the defendant to withdraw her plea of not guilty, and to this ruling the defendant duly excepted.
    The evidence introduced for the State tended to show that, the deceased was the husband of the defendant; that upon the deceased going home one evening, he found defendant administering medicine to her sick baby; that the defendant did not fix his supper; that he became enraged and told the defendant to make haste and get through giving the medicine to the baby as he was going to kill her, and then kill himself; that he loaded the gun in the presence of the defendant and sat it down by him; that he then laid down upon a pallet upon the. floor and continued to abuse the defendant; that after a while he fell a sleep and when the defendant, had finished with the baby, she took the gun which he had loaded and stepping a few feet from the deceased, she levelled the gun at his head and fired, killing him instantly.
    The defendant testified that she was afraid of the deceased, and killed him rather than he killed by him. The defendant, sought to introduce in evidence the testimony of several witnesses showing that the deceased was a turbulent, over-bearing and dangerous man. The state objected to this evidence, tlie court sustained tbe objection, and the. defendant duly excepted.
    D. R. MoMilRan, for appellant, cited Roberts v. Hi ate, 68 Ala. 156.
    Massey Wilson, Attorney-General, for the State.
   STIARPE, J.

Section 4939 of the Code requires that “when the defense, of insanity is set up in any criminal prosecution it must be by special plea, interposed at the time of arraignment ” etc. Defendant’s absolute right to defend on the ground of insanity wa.s lost by her failure to plea to that end when she was arraigned, and her right to thereafter interpose that defense was subject to the trial court’s discretion. If it be conceded that the court’s action in that regard can properly he reviewed, the revision cannot extend beyond the ascertainment of whether there was an abuse of discretion, and that there was such- abuse in the present case does not appear.

The undisputed evidence shows the deceased when shot, was either asleep or was lying down quietly; that he was then making no hostile demonstration towards the defendant, and that the defendant had opportunity to escape from any immediate danger she may have had reason to apprehend. Under such evidence no question of self-defense arose and consequently evidence of the violent and dangerous character of the deceased was properly rejected. Such evidence could have been relevant only in connection with evidence of an. overt act of attack on the part of the deceased, and for the purpose of illustrating the character of the attack together .with its tendency to excite in the. defendant, a reasonable belief that she was in peril of great bodily harm and of a consequent necessity to slay the assailant in order to avert such harm. Payne v. State, 60 Ala. 80; Eiland v. State, 52 Ala. 323; Roberts v. State, 68 Ala. 156; Karr v. State, 100 Ala. 4.

No error in the record is discovered, and the judgment must be affirmed.  