5 Blackf. 119 | Ind. | 1839
This was an action by ■ Carpenter against Crane and Hulett for assault and battery. The declaration contains but one count. Hulett pleaded not guilty ; Crane justified, 1. Son assault demesne; 2. Molliter manus in defence of his close. The plaintiff replied de injuria, &c. to each special plea. The defendants, on their motion, were permitted to have separate trials ; to which the plaintiff excepted. The jury found a verdict in favour of Crane; and, afterwards, the issue with Hulett was tried by consent of parties by the Court, who found for him. Motion for a new trial overruled, and final judgment for the defendants.
Crane, on his trial, opened the cause under the special pleas, and introduced testimony tending to prove an assault and battery committed upon him by the plaintiff; and, also, evidence respecting the possession of the premises where the same took place. The plaintiff then offered to prove, in “ aggravation of damages,” an assault and battery committed upon him by Crane and Hulett, other than that justified by the plea and to which Crane’s testimony related. Crane objecting, this testimony was excluded.
On the trial of Hulett, he offered Crane as a witness on his behalf; the plaintiff objected, but the objection was overruled.
The permission given by the Court to the defendants to be tried separately, is principally relied upon by the plaintiff in error for the reversal of the judgment in this case. There is nothing, however, in the record to sustain the objection.
The testimony offered by the plaintiff, on the trial of the issues with Crane, to establish an assault and battery by him other than that which he justified, was correctly rejected. When two distinct trespasses have been committed upon a plaintiff, one justifiable and the other not — the declaration containing but one count — and the defendant justifies, the plaintiff should new assign and set forth the illegal assault. If he replies de injuria, &c., he puts in issue only tire justification ; and if that be sustained by the evidence, the verdict must be for the defendant. The plaintiff cannot introduce testimony relating to any other assault than that specified in the plea. Gale v. Dalrymple, R. & M. 118. 21 Comm. L. R. 394 n. 1 Chitt. Pl. 660.
Crane was correctly admitted as a witness for Hulett on the separate trial of the latter. Had Crane been tried together with Hulett, and there had been no evidence against him, he might have been acquitted by the jury, and then used as a witness for his co-defendant. He had been acquitted On his separate trial, and was a disinterested witness.
There is no ground on which to sustain the motion for a new trial.
— The judgment is affirmed with costs.
