Fenwick v. Logan

1 Mo. 401 | Mo. | 1823

M’Girk, C. J.,

delivered the opinion of the Court.

This was an action of trespass for assault and battery. Two pleas were pleaded; First, the general issue ? and second, a justification1 of son assault demesne. A jury was empannelled to try the issues, and they returned a verdict of guilty, generally, without saying any thing about-the justification. A motion was made to arrest the judgment, and set aside the verdict,- on the ground that there was no finding on the special plea; and this motion was overruled, and judgment for the plaintiff. The cause is brought here by writ of error, and the want of a finding on the special plea assigned for error. The.law is, that the verdict must find all in issue, otherwise it is bad. The general issue, only, pqts in question the fact of the assault and battery j, and the special plea puts in issue the excuse allowed by law for doing the act y and. if the justification is found for the defendant, he, though he did the act, is to be dis- <> charged. Here, only the fact of doing the act was inquired into ; and his discharge, or justification therefor, is not inquired into.

The judgment is, therefore, erroneous, and is reversed. The cause is remanded to the Circuit Court, to try both issues. The costs of this writ of error are to he paid by defendant in error.