Bonino v. Caledonio, 144 Mass. 299

Bonino v. Caledonio

144 Mass. 299 | Mass. | 1887

W. Allen, J.

1. The testimony of the physician as to the condition of the plaintiff’s nose eight months after the assault was in answer to the request to state the condition of the plaintiff at that time, so far as related to the effect of the injury to the nose. The court could not exclude the testimony without ruling that there was no evidence to connect the condition with the injury.

2. It does not appear that the question put to the physician on the re-direct examination by the plaintiff was answered, nor whether the answer, if one was made, was favorable to the plaintiff or to the defendant.

*3023. The assault alleged in the declaration, and relied upon by the plaintiff, was the biting and mutilating of the plaintiff’s nose. No justification was pleaded, but the defendant offered evidence of provocation in mitigation of damages. After evidence tending to prove that the plaintiff had threatened to assault the defendant, and had without provocation first assaulted him on the occasion in question, which was admitted without objection, the defendant offered to prove that, on two occasions, two and three days before the assault declared on, the plaintiff made unprovoked assaults upon him and injured him. An exception is taken to the exclusion of this evidence. The rule in regard to the admission of evidence of this character is thus laid down in 2 Greenl. Ev. (13th ed.) § 267. “They [the jury] are to consider circumstances of recent and immediate misconduct on the part of the plaintiff, in respect to the same transaction, tending to diminish the degree of injury which, on the whole, is fairly to be attributed to the defendant.” And he gives as an example of this the provocation by the plaintiff of “the assault complained of, by words or acts so recent as to constitute part of the res gestee.” That the circumstances of mitigation must form part of the res gestee has been repeatedly held by this court. Mowry v. Smith, 9 Allen, 67. Tyson v. Booth, 100 Mass. 258. Child v. Homer, 13 Pick. 503. The acts of the plaintiff offered in evidence are in no wise connected with the act of the defendant complained of, except that they are similar to the act of the plaintiff which is alleged to have accompanied and provoked it. They are incompetent, either as constituting provocation for the defendant’s act, or as tending to prove the first assault by the plaintiff, which would constitute provocation. No substantive question of intent is involved in the proof that the plaintiff first assaulted the defendant, which would make evidence of former assaults competent in proof of that, within the rule applied in Commonwealth v. McCarthy, 119 Mass. 354, and Commonwealth v. Bradford, 126 Mass. 42.

4. Evidence of the action of the grand jury was incompetent.

5. No exception was taken to the charge to the jury, and it does not appear what requests for instructions were made by the defendant, nor that they were not given in substance in the charge. The exception is to the act of the judge in deferring *303the consideration of the requests presented during the closing argument, and without their having been shown to the opposing counsel, until after the charge to the jury. This was not a refusal to give the instructions requested. They may have been given. If they were not, the defendant should have called the attention of the court to the fact at the close of the charge, and taken an exception. Exceptions overruled.