45 Conn. 243 | Conn. | 1877
The question in this case arises upon the omission of the court to charge the jury, as requested by the defendant, “that long, continuous and extreme provocation given by the plaintiff should be considered in mitigation of damages.” The defendant claimed to have proved that early in the morning of the day when the assault complained of was committed, the plaintiff began to threaten, and assault him, and challenged him to fight; that the plaintiff kept this up for several hours, and up to the time of the assault complained of, and finally struck him; and that he, apprehending great and immediate bodily violence from the plaintiff, struck him in self-defence. -
It appears by the motion that the evidence was claimed by the defendant to be admissible, first, in justification of the assault, on the principle of self-defence, and secondly, in mitigation of the damages, if it should fall short of establishing a full defence.
It is claimed by the plaintiff that as the- notice under the plea of the general issue is confined to a proof that the assault was committed in necessary self-defence, and the evidence was offered in justification of the assault, it can not be used for the further purpose of mitigating the damages. But the evidence was admissible for that purpose under the general issue without notice, and the fact that it was used as a justification is no reason why it should not also be considered by the jury in determining the-damages. It appears by the motion that the evidence tended to prove a continuous
We think the court should have charged the jury as requested by the defendant, and we therefore advise a new trial.
