16 S.C. 575 | S.C. | 1882
The opinion of the court was delivered by
The plaintiff seeks to recover damages for an alleged assault and battery and false imprisonment committed by the defendant.
The facts are briefly as follows: Holly Hárris, the husband of the plaintiff, on the morning of the day of the difficulty carried into Darlington village a bag of cotton. He drove up in front of the store of the defendant, and, unhitching his horse from the cart, left them standing on the public square, while he crossed the square to see some one on business. When he left he called to the defendant to take charge of the horse until he retunied. The plaintiff, who was living apart from her husband, finding the horse standing as above described and claiming it as her property, walked up and seized the bridle and was in the act of' leading the horse off, when, defendant’s attention being attracted, he ran out and resisted. Holly Harris returned in a few minutes, when the defendant retired, leaving the struggle to Harris. This was kept up during the greater part of the day between man and wife, until in the evening these parties were found in an enclosure behind defendant’s store, with the contest still undecided, when defendant shut the gate and kept them confined until after
The above is a skeleton of the case - the filling up on the one side by the plaintiff, of the aggravating circumstances accompanying the injury of which she complained, and the palliations in the defense, were matters of testimony and need not be particularly stated, as the questions of law involved in the appeal do not depend upon these facts. The defendant, in his testimony, at one time stated that Holly Harris had left the horse in his charge when he crossed the square. Afterwards, he corrected himself and said that Harris had delivered the horse to him that morning under a bill of sale. After full testimony, the jury found for the plaintiff one thousand dollars. The defendant moved for a new trial, which was refused. He then appealed, on the following grounds:
“ 1. Because the presiding judge charged the jury that while the owner o'f property could resist any attempt to take his property in his view, in making such resistance he must not commit an assault and battery or breach of the peace.
“ 2. Because when defendant’s counsel proposed to question the plaintiff when upon the stand, as to the alleged wrongful taking of a bale of cotton a few days previous to the assault and battery and false imprisonment charged in the complaint, stating that the taking of the said cotton was connected with the alleged assault and battery and false imprisonment, and would show the animus of the parties, plaintiff and defendant, his Honor refused permission to ask the said question on the ground of irrelevancy.
“ 3. Because his Honor charged the jury, that the wealth of the defendant is a proper matter for the jury to consider in making up their verdict, without giving any explanation as to the contingency under which, and the purposes for which; the wealth of the defendant might properly be considered.” In all of which the defendant respectfully submitted that his Honor erred.
While the charge of the judge as to the point embraced in the first exception, if it stood alone and independent of the facts and circumstances of the case, might be too broad and general, yet
But, where there is a contest over title to property, and one of the claimants gets actual possession peaceably, either by finding it in some public place, or otherwise, the other cannot retake it by violence. He must resort to the law, and, though the delay may be dangerous, yet the public peace is more important than his private interests, and this requires that he should stay his. hand. He may interfere, if the property is taken in his view, but he must stop short of a breach of the peace. The law will not allow him to commit an assault and battery on the other party over and above, molliter manus imposuit. Davis v. Whitridge, 2 Strobh. 240; State v. Lazarus, 1 Mill Con. R. 34.
The charge of a. judge on appeal should never be considered abstractly. This would be unjust and would frequently put him in error, when in fact there was no error. In this case we do-not suppose that Judge Wallace intended to convey the idea that no one could resist, in the broad language found in this exception. But he was charging to the case, and this case was one where the property in dispute was found in the public square of a village, almost in overt market. One claimant, not with a strong hand, but peaceably, had gotten actual manual possession, was legal, and when in the act of leading the horse off, the other, who was in view, resists, and in resisting commits an assault and battery. Under this state of facts, we think his charge was correct, and is sustained by the cases already referred to. See, also, 2 Greenl. Ev. § 95.
The second exception objects to the exclusion of certain testimony offered by the defendant, on the ground of irrelevancy.
But, where the testimony is pertinent, if objected to, its pertinency should be shown. Here, it does not seem to us that the fact attempted to be proved had any connection whatever with the case. It was a matter which occurred days before, and with which the defendant was in no way, as we can see, concerned. Nor do we find anything in the argument showing its relevancy to the question at issue. We find no error, therefore, in its exclusion.
The third exception is in conflict with Rowe v. Moses, 9 Rich. 426, and the cases there cited, and must be overruled.
It is the judgment of this court that the judgment of the Circuit Court be affirmed.